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CoUege  of  Mv&itinM  anb  ^urgcong 
mtvaxv 


THE  DOCTOR  IN  COURT 


THE 

DOCTOR  IN  COURT 


BY 

EDWIN  VALENTINE  MITCHELL,  LL.B. 

OF   THE    MASSACHUSETTS    BAR 

PROFESSOR  OP  LAW,  UNIVERSITY  OP  SOUTH  DAKOTA 
AUTHOR  OP  "hospitals  AND  THE  LAW" 


SECOND  EDITION  WITH  SUPPLEMENT 


NEW   YORK 

REBMAN    COMPANY 

141    West  S6th   Street 


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/  Q  r' 


CJOPYRIGHT,  1917,  BY 

KEBMAN   COMPANY 
New  York 

All  Righta  reserved 


PRINTED  IN  AMERICA 


C3 


9H 


PREFATORY  NOTE 


The  purpose  of  the  following  pages  is  to  give  a 
sketch  of  the  impression  of  the  law  as  it  applies  to 
physicians  and  surgeons.  It  is  not  a  work  on  the 
correlation  of  law  and  medicine,  popularly  called 
medical  jurisprudence.  It  is  an  attempt  to  put 
briefly  and  in  high  relief  the  general  principles  of 
law  relating  to  the  medical  profession,  and  the  rea- 
sons for  those  principles.  The  questions  consid- 
ered are  rapidly  becoming  of  more  consequence. 
In  the  feverish  and  intemperate  haste  with  which 
persons  nowadays  resort  to  the  courts  for  the  re- 
covery of  damages,  the  physician  and  surgeon  has 
not  escaped.  A  knowledge  of  his  duties  and  legal 
obligations  will  help  him  to  foresee  and  forestall 
unpleasant  eventualities  likely  to  grow  out  of  his 
relations  with  his  patient. 

E.  V.  M. 
Boston,  Mass. 


Digitized  by  the  Internet  Archive 

in  2010  with  funding  from 

Open  Knowledge  Commons 


http://www.archive.org/details/doctorincourtOOmitc 


CONTENTS 

CHAPTER  FAGB 

I.    Professional  Evidence 1 

II.    The  Contract  op  the  Profession     ...  22 

III.  Civil  Responsibility  op  the  Profession  .     .  47 

IV.  Remuneration 78 

V.     Confidential  Communications     ....  96 

VI.    The  Criminal  Responsibility  of  the  Pro- 
fession      108 

VII.    Qualifications 125 

Supplement .  145 

Annotations  to  Chapter  I      .     .     .     .  147 

Annotations  to  Cpiapter  II    ...     .  163 

Annotations  to  Chapter  III  ....  169 

Annotations  to  Chapter  IV  ....  182 

Annotations  to  Chapter  V    .     .     .     .  185 

Annotations  to  Chapter  VI  ...     .  188 

Annotations  to  Chapter  VII       .     .     .  191 

Table  of  Cases  Cited 195 

General  Index  ,.,,..,,.  199 


THE  DOCTOR  IN  COURT 

CHAPTER  I 

PEOFESSIONAL.  EVIDENCE 

The  physician  or  surgeon,  no  matter  whether 
his  practice  be  general  or  special,  is  certain  to  be 
called  upon  to  give  medical  evidence  in  court.  This 
cannot  be  avoided,  as  cases  are  constantly  arising 
which  involve  questions  of  personal  injuries,  of 
mental  capacity,  and  of  death,  either  accidental, 
homicidal  or  suicidal.  The  doctor  has  no  choice  in 
the  matter.  He  cannot  tell  in  what  case  he  will  be 
summoned  into  court  to  testify.  If  called  he  must 
go.  Because  of  the  publicity  of  court  proceedings 
a  reputation  may  be  won  or  lost.  Consequently  it 
is  of  gTeat  importance  for  a  doctor  to  know  his  re- 
lations to  the  court  and  have  his  eyes  open  to  the 
pitfalls  set  for  him  by  the  skilful  cross-examiner. 

The  witnesses  giving  sworn  evidence  before  a 
tribunal  of  justice  may  be  placed  in  two  groups: 
the  accidental  or  non-expert  witness,  and  the  pro- 
fessional or  expert  witness.  It  is  manifest  the  doc- 
tor may  be  called  to  give  testimony  in  either  ca- 
pacity. The  greater  number  of  facts  investigated 
in  our  courts  are  testified  to  by  the  first  group, 

1 


2  The  Doctor  in  Couet 

the  jury  drawing  inferences  or  conclusions  from 
the  facts  as  given  by  these  witnesses.  Back  in  the 
early  years  of  our  courts  this  was  the  sole  type 
of  testimony,  for  the  reason  that  it  was  the  only 
kind  necessary  for  a  jury  to  render  just  decisions. 
Yet  with  the  advancement  of  learning  it  became 
visible  that  facts  and  natural  laws  existed  concern- 
ing which  the  average  man  or  jury  knew  but  little. 
It  was  necessary  to  have  the  aid  of  one  who  could 
correctly  interpret  these  facts.  So  it  came  to  pass 
that  the  expert  was  evolved  to  assist  the  court  and 
jury  to  a  true  conclusion  as  to  these  facts.  Since 
that  time  the  expert  witness 's  importance  as  an  in- 
strumentality for  the  dispensation  of  justice  has 
increased  immensely.  The  discoveries  and  inven- 
tions of  science  have  widened  his  field  of  useful- 
ness inimitably. 

ISTow,  the  examination  of  a  witness  in  court  con- 
sists of  the  direct  or  examination-in-chief,  the  cross- 
examination,  and  the  re-direct  examination.  The 
examination-in-chief  is  where  the  side  calling  the 
witness  into  court  questions  him  as  to  his  knowl- 
edge of  the  facts  in  issue,  or,  in  the  case  of  an  ex- 
pert, where  the  side  for  which  he  is  testifying  puts 
hypothetical  questions  to  him  for  his  opinion 
thereon.  The  cross-examination  is  conducted  by 
the  opposing  counsel.  Its  purpose  is  to  test  the 
truth  of  the  evidence  given  upon  the  examination- 
in-chief,  and  the  prejudice,  memory,  knowledge,  in- 
terest, etc.,  of  the  witness.  The  importance  of  the 
right  of  cross-examination  can  be  seen  from  the 


Peofessional  Evidence  3 

very  nature  of  our  system  of  legal  procedure ;  for 
example,  hearsay  evidence,  where  a  witness  testi- 
fies as  to  what  another  said,  is  inadmissible  because 
the  person  making  the  statement  was  not  subject 
to  cross-examination;  and  for  the  same  reason 
opinions  expressed  in  the  works  of  scientific 
writers  are  not  generally  allowed.  (Other  reasons 
for  excluding  hearsay  evidence  are  that  the  person 
making  the  statement  was  not  under  oath  at  the 
time,  nor  was  he  before  the  jury  so  that  they  could 
pass  on  his  veracity  as  a  witness. 

There  are  many  exceptions  to  the  hearsay  rule. 
The  one  with  which  the  physician  is  most  concerned 
is  the  rule  admitting  dying  declarations,  provided 
the  declarant  knew  or  believed  he  was  about  to  die 
when  he  made  the  statement  and  his  death  is  the 
subject  of  the  indictment.  An  illustration  of  the 
serious  consequences  which  might  attend  the  cur- 
tailing of  one's  right  to  the  cross-examination  of 
witnesses  is  furnished  by  the  very  late  New  York 
case  of  the  People  v.  Lustig  (206  N.  Y.,  162).  The 
prisoner  was  indicted  for  poisoning  his  wife  with 
strychnine  in  order  to  get  the  insurance  on  her 
life.  There  was  a  divergence  in  the  medical  opin- 
ions as  to  the  cause  of  death.  The  chief  medical 
witness  for  the  prosecution  gave  evidence  that  his 
tOxicological  tests  had  revealed  one  one-hundredth 
of  a  grain  of  str^^chnine  in  the  liver  of  the  deceased. 
The  physician  for  the  defence  testified  that  the  re- 
sult of  his  laboratory  work  showed  no  traces  of 
strychnine.    With  the  object  of  showing  the  worth- 


4  The  Doctor  in  Court; 

lessness  of  his  own  tests  the  prosecution's  expert 
was  asked  by  the  prisoner's  counsel  to  describe  his 
tests.  The  accused's  fate  depended  upon  the  ac- 
curacy of  the  physician's  work.  Did  the  woman 
die  by  poison?  The  issue  was  close;  a  human  life 
was  in  the  balance.  Yet  the  court  refused  to  permit 
the  witness  to  answer.  The  higher  court  justly  held 
this  to  be  serious  and  reversible  error.  A  new 
trial  was  granted. 

Immediately  on  being  called  to  the  stand  for  his 
examination  the  oath  is  administered  to  the  witness 
which  binds  him  if  he  assents,  to  tell  *  *  the  truth,  the 
whole  truth,  and  nothing  but  the  truth."  It  has 
been  said  that  expert  testimony  should  be  the  color- 
less light  of  science  brought  to  bear  upon  any  case 
where  such  testimony  is  necessar5\  * '  There  should 
be  no  half  truths  uttered,  and  suppression  of  the 
whole  truth  is  in  the  nature  of  false  testimony." 
"While  such  evidence  should  be  impartial  and  un- 
prejudiced, it  is  often  thought  by  the  expert  that 
to  benefit  the  side  calling  him  he  must  be  absolutely 
sure  that  he  is  right.  A  conscientious  and  unpur- 
chasable  expert  will,  of  course,  have  the  courage  of 
his  convictions.  Testimony  given  in  a  convincing 
manner  undoubtedly  carries  weight,  but  so  many 
theories  in  medicine  and  surgery  have  been  upset 
that  it  is  best  not  to  be  too  confident. 

That  the  skilled  witness  may  be  admirably 
qualified  to  give  evidence  and  at  the  same  time  be 
modest  and  not  at  all  sure  of  the  truth  of  his  opin- 
ion; is  illustrated  by  the  following:   Not  long  ago 


Pkofessional  Evidence  5 

a  captain  in  the  United  States  army  was  called  as 
a  skilled  witness  in  a  shooting  case.  The  captain 
astonished  all  by  refusing  to  swear  he  could  tell 
the  truth.  The  clerk  repeated  the  oath ;  the  captain 
did  not  assent;  he  said,  *'No,  sir.'*  It  was  not  a 
case  of  obstinacy,  because  the  witness  was  willing 
to  do  anything  he  could  to  assist  the  court  and  jury 
in  getting  at  the  facts.  Nevertheless,  he  refused 
to  swear  that  his  conclusions  were  correct. 

The  judge  was  puzzled,  and  the  captain  made 
the  following  explanation  of  his  refusal  to  assent  to 
the  oath:  *'I  decline  to  swear  that  the  expert  testi- 
mony which  I  may  give  is  the  truth.  All  that  I 
can  swear  to  is  that  to  the  best  of  my  ability  and 
understanding  and  judgment,  after  years  of  ex- 
perience and  experiments  in  the  matter  of  small 
firearms,  certain  conditions  produce  certain  results. 
But  I  cannot  swear  such  findings  are  the  truth." 

He  was  accepted  as  a  witness.  The  effect  of 
what  he  said  on  the  jury  can  be  imagined.  Here 
was  a  man  who  was  not  positive  that  his  opinion 
was  right,  and  was  willing  to  say  so,  regardless  of 
its  effect  on  the  side  that  called  him.  The  testi- 
mony of  such  a  man  was  worthy  of  serious  con- 
sideration. This  attitude  can  be  strongly  recom- 
mended to  medical  witnesses  when  they  take  the 
stand. 

It  cannot  be  denied  that  expert  testimony  is 
winked  at.  It  should  have  high  rank  as  a  factor 
in  determining  the  outcome  of  cases,  yet  we  often 
see  it  go  for  naught.    Some  judges  go  so  far  as 


6  The  Doctor  in  CourI: 

to  tell  juries  that  it  is  of  little  probative  value. 
Thus  at  the  trial  of  William  Palmer,  at  the  Old 
Bailey  in  1856,  for  the  poisoning  of  a  man  named 
Cook,  Lord  Chief  Justice  Campbell,  in  the  course 
of  his  summary,  said  to  the  jury:  ''With  regard 
to  the  medical  witnesses,  I  must  observe  that,  al- 
though there  were  among  them  gentlemen  of  high 
honor,  consummate  integrity,  and  profound  scien- 
tific knowledge,  who  came  here  with  a  sincere  wish 
to  speak  the  truth,  there  were  also  gentlemen  whose 
object  was  to  procure  an  acquittal  of  the  prisoner. 
It  is,  in  my  opinion,  indispensable  to  the  adminis- 
tration of  justice  that  a  witness  should  not  be  turned 
into  an  advocate,  nor  an  advocate  into  a  witness. ' ' 

In  a  New  York  case  (Ferguson  v.  Hubbell,  97 
N.  Y.,  507  at  514)  the  court  said:  ''Better  results 
will  generally  be  reached  by  taking  the  impartial, 
unbiased  judgments  of  twelve  jurors  of  common 
sense  and  common  experience  than  can  be  obtained 
by  taking  the  opinions  of  experts,  if  not  generally 
hired,  at  least  friendly,  whose  opinions  cannot  fail 
generally  to  be  warped  by  a  desire  to  promote  the 
cause  in  which  they  are  enlisted. '^ 

Despite  this  judicial  denunciation  of  expert 
testimony  innumerable  instances  of  the  courts 
recognizing  the  knowledge  and  experience  of  med- 
ical witnesses  as  of  great  value  might  be  cited.  In 
many  cases  it^s  absolutely  indispensable  because 
of  the  rule  of  law  requiring  the  production  of  the 
best  evidence.  Who  but  a  toxicologist  can  give  a 
cori'ect  opinion  as  to  whether  or  not  a  man  came 


Professional  Evidence  7 

to  his  death  by  poisoning?  From  the  position 
which  experts  now  hold  in  legal  proceedings  it  is 
not  unnatural  that  a  great  hue  and  cry  should  be 
raised  to  abolish  a  system  which  permits  such 
farces  as  the  Thaw  trial  to  be  enacted  in  our  courts. 
But  remove  the  expert  to  a  non-partisan  position 
by  having  him  appointed  by  the  court  and  great 
distance  will  be  covered  in  the  direction  of  genuine 
reform.  Wlien  juries  come  to  look  upon  the  ex- 
pert more  as  an  officer  or  servant  of  the  court  than 
as  one  giving  evidence  to  fortify  either  side  of  a 
case,  then  the  profession  will  be  treated  with 
greater  respect  and  not  held  up  to  ridicule.  Like 
the  army  captain,  let  the  medical  witness  have  con- 
stant regard  to  the  serious  obligation  of  his  oath, 
and  much  of  the  present  misunderstanding  of  the 
expert  will  be  dispelled. 

Naturally  when  a  skilled  witness  is  called  to  the 
stand  to  give  evidence,  the  question  at  once  arises 
as  to  whether  he  is  in  fact  an.  expert.  Accordingly 
the  foundation  for  an  expert  opinion  is  laid  by  qual- 
ifying the  witness  as  such.  The  doctor  is  inter- 
rogated as  to  his  education,  experience,  etc.,  after 
which,  and  before  going  on  with  his  testimony, 
he  may  be  taken  in  hand  and  cross-examined  as  to 
his  qualifications.  The  court  then  decides  whether 
he  shall  be  permitted  to  testify.  In  other  words, 
the  presiding  justice  rules  upon  the  question  of  the 
doctor's  competency  as  a  witness. 

The  law  does  not  recognize  any  particular 
school  or  class  of  medical  practitioners  as  being 


8  The  Doctor  in  Cotjbt 

better  qualified  than  another  for  skilled  witnesses. 
The  criterion  is  knowledge.  This  knowledge  may 
be  gained  by  reading  and  studying  the  books,  or 
by  experience,  or  both.  The  present  low  status  of 
the  expert  is  also  attributed  to  the  low  standards 
set  for  experts,  which,  it  is  said  permit  the  pseudo- 
expert  to  thrust  himself  upon  the  courts.  Civil 
service  examinations  have  been  suggested  as  a  rem- 
edy, but  if,  as  recommended,  medical  witnesses 
were  chosen  by  the  court,  it  would  insure  science 
being  interpreted  by  experts. 

In  the  direct  examination  the  witness  should 
state  the  facts  simply,  without  qualifying  words. 
If  he  says  the  patient  suffered  from  a  "very  severe 
nervous  shock,"  this  is  certain  to  be  picked  up 
on  the  cross-examination.    It  is  sometimes  neces- 
sary to  use  technical  words  in  order  to  complete 
the  record  of  the  court,  so  that  another  medical 
witness  coming  into  court  at  some  later  time  can 
tell  exactly  what  was  meant.    When  such  terms  are 
essential  be  sure  to  explain  them  in  plain  words 
to  the  jury.    Taylor  tells  of  a  case  where  a  doctor 
testified  "that  on  examining  the  prosecutor  he 
found  him  suffering  from  a  severe  contusion  of  the 
integuments  under  the  left  orbit,  with  great  extrav- 
asation of  blood  and  ecchymosis  in  the  surround- 
ing cellular  tissue,  which  was  in  a  tumefied  state. 
There  is  also  considerable  abrasion  of  the  cuti- 
cle."    On  being  asked  if  he  meant  a  black  eye, 
he  said  "yes."    The  doctor  was  laughed  out  of 
court.    If  this  witness  had  stated  the  patient  had 


Professional  Evidence  9 

a  black  eye,  then,  if  pressed  and  asked  what  he 
meant  by  a  black  eye,  had  given  a  technical  de- 
scription, that  wonld  in  all  probability  have  re- 
lieved him  of  further  examination. 

"Where,  however,  the  doctor  is  acting  purely  as 
an  expert  it  may  not  be  so  easy  a  task  to  give 
answers  wholly  devoid  of  medical  phraseology. 
Dr.  Eeynold  Webb  Wilcox  in  his  inaugural  address 
as  president  of  the  Society  of  Medical  Jurispru- 
dence said:  *'To  a  man  who  is  a  specialist,  the 
demand  which  almost  invariably  occurs,  that  his 
scientific  analysis  of  a  situation  be  translated  into 
the  vernacular  of  every-day  speech,  is  maddening. 
The  popular  idea  that  present-day  physicians  de- 
light in  amplifying  a  medical  vocabulary  for  the 
purpose  of  hearing  lengthy  words,  is  far  from 
being  founded  upon  fact.  The  tendency  is  in  ex- 
actly the  opposite  direction. 

'*No  one  who  knows  anything  about  literatui'e 
would  expect  the  translator  of  an  idiomatic  bit  of 
French  verse  to  obtain  in  English  exactly  the  same 
meaning.  Yet  medical  men  of  international  repu- 
tation are  asked  to  describe  a  state  of  mental  dis- 
order in  one-syllable  words,  conceived  by  our  an- 
cestors, in  an  era  when  it  was  scarcely  realized 
that  the  brain  was  part  of  the  human  system.  I 
do  not  advocate  having  the  experts'  testimony 
tuned  so  high  tliat  the  jury  and  judge  are  in  the 
dark,  but  it  does  seem  that  the  means  should  be 
taken  to  impart  to  them  the  rudiments  of  medical 
phraseology. ' ' 


10  The  Doctor  in  Court 

Efficiency  in  the  high  art  of  cross-examination 
is  a  matter  npon  which  a  great  many  lawyers  pride 
themselves.  Perhaps  no  greater  opportunity  for 
the  trial  lawyer  to  distinguish  himself  is  afforded 
than  the  cross-examination  of  expert  witnesses. 
Extended  preparation  with  the  object  of  undermi- 
ning the  testimony  of  medical  witnesses  is  often 
made  under  the  tutorship  of  other  experts.  In- 
geniously contrived  questions  are  set  for  the  wit- 
ness. So  the  doctor  must  beware  the  cross-exami- 
nation. 

It  is  not  presumed  here  for  a  minute  that  the 
physician  would  testify  falsely.  The  lying  witness 
is  generally  very  easy  to  corner.  Even  the  clev- 
erest will  make  a  fatal  slip  sooner  or  later.  As  a 
matter  of  fact,  the  cross-examiner  must  treat  the 
medical  witness 's  testimony  with  skepticism.  This 
is  the  attitude  of  the  advocate's  mind  in  approach- 
ing any  witness  if  the  witness  has  given  testimony 
conflicting  with  that  already  advanced  or  to  be 
offered  by  the  examiner's  side.  It  is  a  mistake  to 
believe  that  when  the  lawyer  rises  for  the  cross- 
examination  his  sole  object  is  to  make  the  witness 
out  a  liar.  He  will  undoubtedly  try  to  prove  his 
own  case  from  the  lips  of  the  witness  or  some 
theory  not  incompatible  therewith.  This  method  of 
turning  testimony  in  favor  of  the  questioner's  side 
is  followed  by  the  majority  of  cross-examiners.  It 
does  not  mean  that  he  is  trying  to  trip  the  witness,- 
because  what  he  seeks  to  bring  out  has  in  all  prob- 
ability not  been  touched  on  in  the  examination-in- 


Professional  Evidence  11 

chief.  Naturally  an  attorney  is  not  going  to  ask 
his  own  witnesses  for  facts  which  he  knows  are 
damaging  to  his  cause.  He  leaves  them  for  iihe  op- 
position to  bring  out ;  it  is  for  these  the  cross-ques- 
tioner seeks. 

For  illustration :  In  a  suit  for  personal  injuries 
against  a  railroad  company,  where  the  plaintiff  suf- 
fered a  fracture  of  his  leg  which  resulted  in  a  short- 
ening of  the  limb,  the  attending  physician  testified 
that  ''the  condition  was  a  simple  transverse  frac- 
ture at  the  junction  of  the  middle  and  upper  third 
of  the  femur.  That  after  reduction  and  the  appli- 
cation of  dressings  an  X-ray  plate  showed  a  per- 
fect anterioposterior  alignment."  A  liberal  ver- 
dict was  returned  for  the  plaintiff.  The  doctor 
subsequently  in  conversation  with  a  friend  said 
that  he  had  other  X-ray  plates  taken  at  various 
angles  showing  there  was  an  overlapping  of  the 
ends  of  the  bones  due  to  his  improper  application 
of  dressings.  Here  a  proper  cross-examination 
would  have  brought  out  this  fact  and  damages 
would  have  been  greatly  mitigated.  By  failure  to 
properly  cross-examine  the  witness  the  defendant 
was  paying  for  the  doctor's  carelessness. 

A  common  tactic  of  the  trial  lawyer  in  cross- 
examining  a  witness  is  to  attempt  the  witness's 
downfall  by  showing  that  the  witness  is  ''inter- 
ested" in  the  outcome  of  the  case.  The  physician 
is  asked  how  he  happened  to  come  into  the  case. 
He  is  carefully  examined  as  to  whether  he  has  re- 
ceived compensation  for  his  services  in  attending 


12  The  Doctor  in  Court 

the  patient,  or  how  much  he  is  to  receive  for  ap- 
pearing as  an  expert.  If  an  unsatisfactory  reply 
is  given,  the  attorney  may  use  the  fruits  of  such  a 
line  of  questioning  in  his  argument  to  discount  and 
nullify  the  physician's  testimony.  The  advocate 
will  try  to  persuade  the  jury  that  the  doctor's  being 
paid  is  a  contingency  dependent  upon  a  favorable 
verdict,  and  that  the  testimony  of  one  so  interested 
must  necessarily  be  highly  colored. 

Many  lawyers  believe  a  most  cursory  reading 
of  medical  authorities  will  qualify  them  to  success- 
fully cross-question  the  greatest  specialists  upon 
their  own  subjects.  A  true  expert  can  easily  de- 
fend himself  against  the  attacks  of  such  an  antag- 
onist, but  no  matter  how  strongly  he  may  be 
tempted  to  strike  back  let  him  resist  the  impulse. 
It  is  poor  taste  to  engage  in  repartee.  Medical  wit- 
nesses in  general  have  been  hurt  by  the  physician 
not  long  out  of  medical  school  matching  wits  and 
bandying  words  with  counsel.  The  latter  has  the 
advantage  from  his  position  as  questioner.  Nat- 
urally the  lawyer  knows  more  about  the  art  of 
cross-examination  than  the  average  witness ;  for  it 
is  part  of  the  practice  of  his  profession,  just  as  it 
is  part  of  the  physician 's  to  prescribe  for  illnesses. 
True,  the  advocate  frequently  runs  himself  on 
his  own  sword;  but  the  average  lawyer  is  more 
proficient  in  the  art  than  the  medical  witness. 

When  the  physician  is  tormented  by  a  member 
of  the  Spanish  Inquisition  school  of  cross-exami- 


Peofessional  Evidence  13 

nation,  lie  should  above  all  things  keep  his  temper. 
This  species  of  examiner  is  not  half  as  deadly  as 
the  quiet,  friendly,  persuasive  type.  But  it  is  im- 
portant always  to  be  cool  while  on  the  stand.  If 
a  cross-examiner  sees  that  he  can  get  the  witness 
angry,  he  will  do  all  in  his  power  to  bring  this 
about.  For  the  witness  then  thinks  more  of  a 
means  of  retaliation  and  not  so  much  of  what  he 
is  saying,  thus  making  it  easier  for  the  examiner 
to  trap  him  in  a  statement  carelessly  inconsistent, 
or  the  witness  may  utter  an  unguarded  statement. 

In  giving  his  opinion  the  expert  cannot  usurp 
the  right  of  the  jury  to  judge  the  facts.  The  ex- 
pert is  not  to  say  which  witnesses  are  telling  the 
truth.  That  is  for  the  jury  to  decide.  ' '  In  order, ' ' 
says  the  Supreme  Judicial  Court  of  Massachusetts 
(Dickenson  v.  Fitchburg,  13  Gray,  546),  *'to  obtain 
the  opinion  of  a  witness  on  matters  not  depending 
on  general  knowledge,  but  on  facts  not  testified 
of  by  himself,  one  of  two  modes  is  pursued :  either 
the  witness  is  present  and  hears  all  the  testimony, 
or  the  testimony  is  summed  up  in  the  question  put 
to  him ;  and  in  either  case  the  question  is  put  to  him 
hypothetically,  whether,  if  certain  facts  testified  of 
are  true,  he  can  form  an  opinion,  and  what  that 
opinion  is." 

Now  a  hypothetical  question  is  framed  on  the 
existence  of  facts  which  are  assumed  to  be  then 
proven,  or  there  is  a  reasonable  expectancy  that 
they  will  be  in  evidence  at  a  later  time.    It  must 


14  The  Dootob  in  Court 

necessarily  contain  tlie  facts  on  which  an  opinion 
is  wanted.  It  is  for  the  jury  to  decide  whether 
these  facts  are  the  truth. 

The  following  is  a  good  exanix)le  of  a  hyj)o- 
thetical  question  which  was  put  to  a  physician  of 
standing  and  experience,  for  his  opinion  as  to  the 
cause  of  a  sickness,  the  outcome  of  which  was  the 
death  of  a  little  girl:  ''Suppose  a  girl  between 
seven  and  eight  years  of  age,  who  had  always  been 
in  good  health,  on  the  9th  day  of  January,  1887, 
to  have  been  run  over  by  a  runaway  horse,  with 
sleigh  attached,  to  have  been  knocked  insensible  to 
the  ground,  the  horse  and  sleigh  passing  over  her, 
inflicting  three  cuts,  one  upon  the  top,  one  uj)on 
the  side,  and  one  upon  the  back  of  her  head,  from 
the  hoofs  of  the  horse  or  otherwise ;  that  she  there- 
after was  attacked  with  vomiting,  and  was  confined 
to  the  house  for  two  months,  suffering  gTeat  pain 
in  the  back  and  front  of  the  head ;  that  at  intervals 
thereafter  increasing  in  frequency  and  intensity 
till  the  date  of  her  death,  on  May  18,  1892,  she 
was  attacked  with  violent  pains  in  the  head  accom- 
panied with  vomiting ;  that  in  the  last  few  months 
of  her  life  her  sight  gradually  failed,  and  she  be- 
came totally  blind ;  that  her  legs  became  unsteady, 
and  her  control  over  them  uncertain ;  that  she  suf- 
fered almost  continually  great  pain  in  the  front 
and  back  of  her  head;  that  after  her  death,  on 
examination,  it  was  found  that  she  had  one  or  more 
tumors  of  the  cerebellum,  or  at  the  base  of  the  brain 
— ^what,  in  your  opinion,  was  the  exciting  cause  of 


Peofessionaij  Evidence  15 

the  illness  from  which  she  suffered  from  January 
9, 1887,  the  dat6  of  the  accident,  till  the  date  of  her 
death.  May  18,  1892?"  (Hardiman  v.  Brown,  162 
Mass.,  585.) 

Leading  questions  cannot,  as  a  general  rule, 
be  asked  on  the  direct  examination,  but  are  per- 
missible on  the  cross-examination.  A  leading 
question  is  one  that  suggests  the  answer.  On  the 
examination-in-chief  the  cjuestion  would  be  worded, 
* '  Where  were  you  at  9  o  'clock  on  the  night  of  Feb- 
ruary 16th  ? ' '  Answer, ' '  I  was  at  the  theatre. ' '  In 
cross-examining  this  witness  the  question  could 
be  put,  ''Were  you  not  at  the  theatre  on  the  night 
of  February  16th ?" 

The  witness  should  watch  on  the  cross-examina- 
tion for  questions  so  involved  as  to  contain  really 
two  questions,  one  of  which  can  be  answered  "yes" 
and  the  other  "no,"  whereas  if  the  physician 
answered  the  whole  with  a ' '  yes  "  or  "  no, ' '  it  would 
trap  him.  The  witness  should  not  hesitate  to  say 
that  the  question  has  two  answers. 

Again,  many  times  questions  are  asked  which 
assume  something  to  be  true  that  has  no  evidence 
to  support  it,  as  where  A  is  indicted  for  shooting 
B,  which  he  denies,  and  is  asked,  ' '  Did  B  say  any- 
thing to  you  before  you  shot  him  ? ' '  The  doctor  is 
likely  to  get  a  question  of  this  description.  It  is, 
of  course,  improper.  They  are  put  to  the  witness 
on  the  chance  of  getting  them  into  the  record  un- 
challenged. 

The  medical  witness  need  not  answer  a  question 


16  The  Dootoe  in  Cotjrt 

which  tends  to  incriminate  him.  Poore  (A  Treatise 
on  Medical  Jnrisprudence)  says  that  *'in  the  old 
days  of  duelling  any  doctor  who  went  out  as  a 
surgeon  to  a  duel  became  an  accessory  to  the  fact 
if  the  duel  resulted  in  death.  Technically  he  be- 
came accessory  to  a  murder.  Therefore,  in  such  a 
case  if  the  doctor  was  asked  whether  he  went, 
knowing  that  a  duel  was  to  be  fought,  he  was  not 
bound  to  answer,  because  the  answer  to  it  might 
incriminate  him." 

The  use  of  notes  by  a  witness  in  court  is  gen- 
erally allowed  for  the  purpose  of  refreshing  the 
memory  of  the  witness.  They  must  be  of  such  a 
nature  that  the  witness  knows  they  were  correct 
when  made.  The  witness  must  have  made  them 
himseK  at  the  time  of  the  occurrence  of  the  facts, 
or  so  soon  afterward  that  it  is  likely  they  were  fresh 
in  his  memory  (Stephens'  Digest  of  the  Law  of 
Evidence,  339).  Such  writings  do  not  become  evi- 
dence. Yet  testimony  given  from  complete  notes 
is  of  great  worth. 

The  importance  to  the  physician  of  keeping  full 
and  accurate  records  of  cases  in  his  charge  cannot 
be  overemphasized.  The  physician  should  keep 
copies  of  the  death  certificates  he  gives,  and  the 
records  of  the  progress  of  diseases  in  cases  under 
his  care  and  also  hospital  records,  especially  where 
casualties  are  concerned.  General  practitioners 
are,  as  a  rule,  too  careless  in  such  matters. 

It  may  be  many  years  before  a  general  prac- 
titioner is  suddenly  summoned  as  a  witness  in  a 


Peofessional  Evidence  17 

case,  and  he  then  finds  himself  at  a  loss  to  account 
for  certain  things  and  cannot  answer  questions 
properly.  Owing  to  the  multiplicity  of  personal  in- 
jury suits  with  which  our  courts  are  congested, 
the  physician  is  frequently  asked  to  give  medical 
evidence  concerning  injuries  sustained  by  his  pa- 
tient in  an  accident  which,  perhaps,  happened  years 
before.  If  he  is  without  any  record  he  will  find 
himself  in  an  embarrassing  situation.  In  almost 
every  personal  injury  case  the  plaintiff  has  under- 
gone a  physical  examination  by  a  physician  or  sur- 
geon hired  by  the  defendant.  If  called  to  make 
such  an  examination,  a  record  thereof  should  be 
made  for  the  benefit  of  the  defendant.  The  follow- 
ing outline  for  making  these  reports  is  suggested : 

Name  of  Case. 

Date. 

Time. 

Place  of  Accident. 

Date  of  Examiuation. 

Medical  Attendance,  stating  fully  names  of  phy- 
sicians with  addresses,  also  hospital,  if  any,  at 
which  injured  was  treated. 

Name. 

Age. 

Occupation. 

Business  and  Home  Address  of  Injured. 

Married  or  Single,  etc. 

Diagnosis. 

History. 


18  The  Doctor  in  Court 

Present  Condition  of  Injured. 

Nature  of  the  Accident  as  told  by  Injured. 

Prognosis. 

Remarks. 

The  "remarks"  of  the  physician  should  loe  writ- 
ten on  a  separate  sheet  of  paper;  for  if  the  report 
is  to  be  used  by  the  doctor  to  refresh  his  memory 
in  court,  it  is  likely  to  be  scrutinized  by  the  oppos- 
ing counsel,  and  it  is  well  not  to  have  these  confi- 
dential comments  a  part  of  the  report. 

"While  the  rules  governing  the  giving  of  expert 
medical  opinions  in  court  are  purely  questions  of 
evidence  with  which  the  legal  profession  is  more 
concerned,  still  they  have  been  hinted  at  here,  and 
it  does  not  seem  amiss  to  give  the  underlying  rea- 
sons for  permitting  medical  witnesses  to  give  opin- 
ions. As  a  general  rule  witnesses  are  not  permitted 
to  voice  their  opinions  in  court.  They  are  limited 
to  giving  in  evidence  the  bare  facts  of  which  they 
have  knowledge.  It  is  the  special  function  of  the 
jury  after  considering  the  facts  thus  presented  to 
voice  its  opinion  thereon.  In  other  words,  a  ver- 
dict is  the  conclusion  or  opinion  of  the  jury  on 
the  facts. 

Notwithstanding  this,  there  are,  as  we  have  seen, 
certain  cases  where  by  necessity  one  having  special 
skill  and  knowledge,  is  called  to  give  an  opinion  by 
way  of  explanation  of  the  matter  in  issue  to  the 
jury.  It  is  under  this  exception  that  the  expert 
medical  opinion  comes.    Obviously  a  physician  and 


Peopessional  Evidence  19 

surgeon  lias  a  knowledge  and  training  not  common 
to  men  in  general.  Consequently  when  a  question 
involving  medicine  or  surgery  arises,  the  medical 
expert  is  called  on  account  of  his  superior  knowl- 
edge. Because  the  facts  speak  in  a  strange  tongue 
to  the  ordinary  man,  the  physician  is  called  to 
translate  and  explain  their  correct  significance. 
The  opinions  so  given  are  not  conclusive,  but  are 
looked  upon  as  any  other  testimony.  Inasmuch  as 
they  are  based  on  assumptions  of  fact  the  opinion 
is  worthless  if  the  jury  do  not  find  the  evidence  or 
facts  upon  which  they  are  laid  to  be  true:  if  the 
foundation  is  unstable  the  superstructure  falls. 

The  giving  of  expert  opinions  in  court  did  not 
become  well  established  until  the  eighteenth  cen- 
tury. The  adoption  of  the  custom  has  been  grad- 
ual ;  its  history  is  that  of  the  correlation  of  law  and 
medicine.  As  progress  was  made  in  the  sciences 
and  arts  the  professional  witness  became  of  ever- 
increasing  importance,  until  to-day  he  is  indispen- 
sable. 

In  1532  the  diet  of  Eatisbon,  at  the  instigation 
of  Emperor  Charles  V,  adopted  the  penal  code  of 
Gennany,  in  which  provision  was  made  for  the  call- 
ing of  physicians  as  witnesses  in  case  of  injury, 
poisoning,  violent  death,  etc. 

In  England  it  was  first  customary  to  select 
jurors  who  were  specially  fitted  to  judge  the  facts 
of  a  particular  case  (Historical  and  Practical 
Considerations  Regarding  Expert  Testimony,  by 
Learned  Hand,  vol.  15,  Harv.  Law  Rev.,  40) .  Prob- 


20  The  Doctor  in  Coxjbt 

ably  the  earliest  trial  where  a  medical  witness  tes- 
tified as  to  his  conclusions  was  that  of  Alsop  v. 
Bowtrell  (Cro.  Jac,  54)  in  1620,  when  physicians 
upon  the  issue  of  legitimacy  of  a  child  said  it  was 
possible  for  a  woman  to  have  a  child  forty  weeks 
and  nine  days  after  the  death  of  her  husband,  be- 
cause the  time  might  be  delayed  on  account  of  lack 
of  strength  or  bad  usage.  The  Witches  case  (6 
Howell,  State  Trials,  697)  tried  in  1665,  is  another 
early  case  in  which  an  expert  opinion  was  per- 
mitted. In  that  trial  a  physician  gave  his  opinion 
of  the  accused  persons.  He  declared  them  to  be 
witches. 

Because  of  the  very  restricted  sense  in  which 
medical  books  can  be  used  in  our  courts,  the  de- 
liberately expressed  opinions  of  experts  upon 
scientific  matters  is  of  great  assistance.  A  product 
of  our  civilization,  the  employment  of  the  expert 
daily  becomes  more  frequent  and  of  greater  con- 
sequence. The  desire,  therefore,  to  remedy  the 
faults  of  the  method  which  now  obtains  is  actively 
manifesting  itself.  Yet  the  task  of  formulating  a 
satisfactory  plan  still  vexes  the  members  of  both 
professions.  Many  reforms  have  been  suggested. 
That  one  which  would  have  the  expert  appointed  by 
the  court  gives  most  promise  of  deliverance  from 
the  present  situation.  For  the  evils  of  the  system 
seem  chargeable  to  the  fact  that  the  expert  is  now 
retained  by  the  contending  parties  in  a  case.  His 
position  is  that  of  an  active,  interested  participant. 
The  suspicion  that  he  is  a  mere  * '  intellectual  prosti- 


Peofessional  Evidence  21 

tute"  is  immediately  aroused  in  tlie  minds  of  the 
jury.  His  appointment  by  the  court  would  remove 
him  from  this  embarrassing  situation  and  place 
him  in  an  unprejudiced  and  neutral  position.  The 
viciousness  of  the  present  method  has  brought  forth 
just  criticism  and  reproach.  It  is  a  subject  which 
deserves  serious  reformatory  consideration.  The 
remedy  lies  with  the  members  of  both  professions 
(Expert  Testimony, — Prevalent  Complaints  and 
Proposed  Eemedies  by  Judge  William  L.  Foster, 
11  Harv.  Law  Rev.,  169;  Expert  Testimony,  by 
Lee  Max  Friedman,  Yale  Law  Journal.  February, 
1910). 

When  the  physician  and  surgeon  is  called  upon 
to  give  evidence  in  court  he  should  bear  in  mind 
the  advice  of  Dr.  Taylor.  ''It  is  essential,"  said 
Taylor,  "first,  that  he  should  be  prepared  on  all 
parts  of  the  subject  on  which  he  is  about  to  give 
evidence;  and,  secondly,  his  demeanor  should  be 
that  of  an  educated  gentleman  and  suited  to  the 
serious  occasion  on  which  he  appears." 


CHAPTER  ir 

THE    CONTEACT    OF    THE    PEOFESSIOIT    , 

At  this  point  it  seems  necessary  to  introduce 
a  brief  preliminary  statement  of  the  origin  and  his- 
tory of  the  legal  system  of  our  country  in  order 
that  the  law  as  it  specially  affects  physicians  and 
surgeons  in  their  relations  to  their  patients  may 
be  more  readily  understood.  This  system  in  its 
present  complex  development  is  said  to  be  like  a 
mighty  cathedral,  of  slow  construction  and  com- 
posite architecture,  the  materials  for  which  have 
been  brought  from  various  sources,  and  the  growth 
of  which  has  been  super-vised  by  a  coalition  of  legal 
architects. 

Since  the  evolution  of  human  from  animal 
society  man  has  had  his  conduct  regulated  by  law. 
Through  the  centuries  of  savagery  and  barbarism, 
customary  law  deter-mined  the  relations  of  man  to 
his  fellows,  and  after  the  dawn  of  civilization, 
through  conquest  and  migTation  and  the  consequent 
intermingling  and  blending  of  peoples  and  socie- 
ties, positive  law  arose  and  developed  as  a  natural 
attendant  of  advancing  civilization  and  a  necessary 
factor  in  an  increasingly  complex  society. 

In  England,  which  at  the  close  of  the  thirteenth 
22 


CONTEACT   OF   THE   PROFESSION"  23 

century  had  only  two  things  on  her  statute-book  be- 
sides the  Magna  Charta,  the  common  law  has  been 
the  foundation  of  all  modem  law,  written  or  other- 
wise. It  is  composed  of  customs  and  maxims  which 
have  been  acted  upon  since  no  man  can  say  what 
time.  In  the  words  of  Cooley,  ''The  common  law 
of  England  consisted  of  those  maxims  of  freedom, 
order,  enterprise,  and  thrift  which  had  prevailed  in 
the  conduct  of  public  atfairs,  the  management  of 
private  business,  the  regulation  of  the  domestic  in- 
stitutions, and  the  acquisition,  control,  and  transfer 
of  property  from  time  immemorial.  It  was  the  out- 
growth of  the  habits  of  thought  and  action  of  the 
people,  and  was  modified  gradually  and  insensibly 
from  time  to  time  as  those  habits  became  modified, 
and  as  civilization  advanced,  and  new  inventions  in- 
troduced new  wants  and  conveniences  and  new 
methods  of  business"  (Cooley's  Constitutional 
Limitations,  32).  It  must  not  be  supposed  then 
that  law  is  a  set  of  fixed  and  unalterable  rules.  It 
is  constantly  changing  with  the  welter  and  cross 
currents  of  social  and  economic  conditions  to  meet 
the  changing  needs  of  a  changing  society. 

Now  it  must  be  kept  in  mind  that  for  more 
than  half  of  its  eventful  life  this  country  existed 
as  a  British  colonial  possession.  Our  forefathers 
as  subjects  of  England,  lived  in  her  territory,  and 
were  governed  by  English  law.  When  as  emi- 
grants they  crossed  to  the  New  World,  they  brought 
with  them  such  parts  of  the  common  and  statutory 
law  of  the  mother  country  as  were  best  suited  to 


24  The  Doctoe  in^  Couet 

their  altered  circumstances  on  this  side  of  the  At- 
lantic. After  hostilities  between  the  colonies  and 
the  crown  ended  in  our  independence,  it  was  only 
natural  that  our  ancestors  should  keep  the  laws  to 
which  they  had  been  accustomed  in  so  far  as  they 
did  not  abrogate  our  constitutions  and  charters. 
It  is  not  strange  then  that  we  find  the  common 
law  an  integral  part  of  the  system  of  law  under 
which  we  live.  In  this  country,  as  in  England,  it 
is  the  foundation  of  all  our  modem  statutes,  and, 
though  unwritten,  comprises  by  far  the  greater 
part  of  our  law.  Therefore  it  follows  that  many 
of  the  rules  relating  to  the  duties  and  legal  obliga- 
tions of  physicians  and  surgeons  are  to  be  found 
in  the  common  law. 

Sir  William  Blackstone  defines  a  contract  as 
"an  agreement,  upon  a  sufficient  consideration,  to 
do  or  not  to  do  a  particular  thing"  (2  Bl.  Comm., 
442). 

Contracts  are  of  different  kinds.  They  are 
usually  divided  with  reference  to  their  form  into 
contracts  of  record,  specialties,  and  simple  or  parol 
contracts.  Contracts  of  record  are  those  of  which 
the  record  of  a  court  is  the  evidence,  as  a  judgment. 
Specialties  are  sealed  instruments,  such  as  deeds 
and  bonds.  The  last  division  into  simple  or  parol 
contracts  includes  all  other  contracts  which  may 
be  in  writing  or  oral. 

Simple  contracts  are  also  distinguished  as  ex- 
press or  implied.  This  classification  is  important 
in  the  contracts  of  the  physician  and  surgeon  and 


Contract  of  the  Peopession  25 

Ms  patient.  An  express  contract  is  a  ^'contract 
made  in  distinct  and  explicit  language,  or  by  writ- 
ing; as  distinguished  from  an  implied  contract"  (2 
Kent's  Comm.,  450),  wliicli  is  ''one  not  created  or 
evidenced  by  the  explicit  agreement  of  the  parties, 
but  inferred  by  law  as  a  matter  of  reason  and  jus- 
tice, from  their  acts  or  conduct"  (2  Bl.  Comm., 
443). 

For  illustration :  X  engages  Y  to  perform  some 
service  for  him.  The  law  will  here  imply  an  agree- 
ment or  understanding  that  X  will  pay  Y  a  reason- 
able amount  for  the  work  he  does. 

Contracts  are  further  separated  into  those 
which  are  executed  and  those  which  are  executory. 
An  executed  contract  is  one  that  has  been  per- 
formed fully  and  nothing  remains  to  be  done  by  the 
parties  thereto.  A  contract  is  said  to  be  executory 
when  there  is  yet  something  to  be  done. 

There  are  certain  elements  which  are  necessary 
in  the  formation  of  every  contract  enforceable  in 
law.  It  is  essential  that  the  parties  should  be  ca- 
pable of  contracting.  It  is  well  known  that  certain 
persons  are  not  competent  to  make  contracts. 
Thus  a  minor  or  infant  (one  who  is  under  twenty- 
one  years  of  age,  though  in  some  instances  a  fe- 
male attains  her  majority  at  eighteen  years)  can- 
not legally  contract.  The  minor's  contract,  except 
for  ''necessaries,"  is  held  to  be  voidable,  not  void, 
which  means  that  upon  becoming  of  age  or  a  rea- 
sonable time  thereafter,  he  can  elect  to  disaffirm 
the  contract  and  not  bind  himself  to  its  terms,  or  he 


26  The  Doctor  in  Court 

can  ratify  it  and  become  bound.  With  regard  to 
''necessaries,"  in  the  words  of  Lord  Coke  (Co. 
Lit.,  172a)  ''it  is  agreed  by  all  the  books  that  an  in- 
fant may  bind  himself  to  pay  for  his  necessary 
meat,  drink,  apparel,  physic  and  other  neces- 
saries.'' (Insane  persons,  drunkards,  and  bank- 
rupts are  in  certain  cases  considered  incapable  of 
contracting.) 

Another  constituent  element  of  a  contract  is  that 
the  minds  of  the  parties  must  meet.  There  must 
be  mutual  consent  to  its  stipulations ;  there  must  be 
no  mistake  or  fraud. 

Furthermore,  there  must  be  a  valid  considera- 
tion. The  consideration  is  the  ' '  inducement  to  the 
contract"  (Black's  Law  Dictionary). 

It  is  also  necessary  that  the  object  of  the  con- 
tract be  one  that  is  permitted  by  law;  that  is  to 
say,  a  contract  to  do  an  illegal  act  is  void.  For  ex- 
ample, the  owner  of  a  "medical  institute"  could 
not  contract  to  cure  diseases  and  give  medical  ad- 
vice and  treatment  when  he  did  not  have  a  license 
to  practise  medicine  (Deaton  v.  Lawson,  40  Wash., 
486;  82  Pac,  879).  He  could  not  perform  his  part 
of  the  contract  without  violating  the  law,  hence 
there  was  no  valid  consideration,  and  the  contract 
was  void. 

The  language  used  in  making  contracts, 
whether  they  be  oral  or  written,  and  the  effect 
thereof,  are  matters  of  fact  for  the  jury  to  deter- 
mine. Nevertheless,  the  law  will  often  infer  or  im- 
ply a  contract  from  certain  facts  which  are  undis- 


Contract  of  the  Peofession  27 

puted.  It  considers  certain  elements  a  part  of  some 
classes  of  contracts,  and  charges  the  parties  with 
certain  duties  in  connection  therewith.  This  is  the 
case  of  contracts  of  a  semi-public  nature,  as  those 
of  lawyers  and  the  contracts  of  the  medical  pro- 
fession. So  it  is  by  implication  of  law  that  the 
physician  and  surgeon  holding  himself  out  to  the 
world  as  such,  represents  that  he  possesses  the  wis- 
dom and  skill  necessary  to  qualify  him  to  practise. 
The  law  charges  him  absolutely  with  the  duty  of 
possessing  this  knowledge  (Force  v.  Gregory,  63 
Conn,,  167;  38  Am.  St.  Rep.,  371;  Pike  v.  Honsin- 
ger,  155  N.  Y.,  201 ;  Kendall  v.  Brown,  74  III,  232 ; 
Potter  V.  Warner,  91  Pa.  St.,  362 ;  Sears  v.  Pren- 
tice, 8  East,  348).  It  is  a  right  of  his  patient  to 
assume  this  to  be  the  fact,  and  an  attempt  to  per- 
form an  operation,  where  the  physician  lacks  the 
learning  and  experience  to  use  ordinary  skill,  will 
not  be  excused  on  the  plea  of  ignorance. 

This  degree  of  professional  learning  and  skill 
which  the  physician  is  required  to  bring  to  the  aid 
and  relief  of  his  patients,  has  been  considered  by 
the  courts  in  a  vast  number  of  cases.  They  have 
almost  universally  held  that  when  a  physician  and 
surgeon  undertakes  to  attend  a  case,  he  impliedly 
contracts  that  he  will  use  that  degree  of  learning 
and  skill  for  his  employer  which  is  ordinarily 
possessed  by  other  members  of  his  profession  in 
localities  not  dissimilar  from  that  in  which  he  is 
practising  ( Whitesell  v.  Hill,  101  la.,  629 ;  37  L. 
B.  A.,  830;  Small  v.  Howard,  128  Mass.,  131;  35 


28  The  Doctor  IjST  Couet 

Am.  St.  Rep.,  363;  Force  v.  Gregory,  63  Conn., 
167;  Tompkins  v.  Pacific  Mut.  Life  Ins.  Co.,  53  W. 
Va.,  479 ;  Akridge  v.  Noble,  114  Ga.,  949 ;  Grainger 
V.  Still,  187  Mo.,  197;  Utley  v.  Bums,  70  111.,  167; 
Leighton  v.  Sargent,  31  N.  H.,  119 ;  McCracken  v. 
Smatliers,  122  N.  C,  799;  Bonnet  v.  Foote,  47 
Colo.,  282 ;  Van  Skike  v.  Potter,  53  Neb.,  28 ;  Hales 
V.  Raines,  146  Mo.  App.,  232 ;  Barnes  v.  Means,  82 
111.,  379;  Pike  v.  Honsinger,  155  N.  Y.,  201;  Jones 
V.  Angell,  95  Ind.,  376 ;  McMurdock  v.  Kimberlin, 
23  Mo.  App.,  523;  Gillette  v.  Tucker,  67  Ohio  St., 
106;  Wells  v.  Feny-Baker  Co.,  57  Wash.,  658;  107 
Pac.  Rep.,  869;  Wood  v.  Clapp,  4  Sneed  (Tenn.), 
65 ;  Dunbauld  v.  Thompson,  109  la.,  199.  See  also 
exhaustive  note  in  37  Lawyers '  Reports  .Ajinotated, 
325). 

The  reason  for  taking  into  consideration  the 
place  where  the  medical  man  carries  on  his  practice 
is  apparent  immediately  we  think  of  the  educational 
advantages  the  city  doctor  has  over  one  who  prac- 
tises in  the  less  thickly  populated  sections  of  the 
country.  The  former  has  institutional  privileges 
of  hospitals  and  libraries.  He  can  attend  clinics, 
lectures,  and  the  meetings  of  medical  societies,  thus 
becoming  quickly  conversant  with  the  most  recent 
and  up-to-date  methods  of  diagnosis  and  treat- 
ment. It  would  obviously  work  an  injustice  to 
hold  otherwise.  Of  course,  a  countiy  doctor  may 
be  equipped  with  an  excellent  education  and  have 
a  wide  knowledge  of  the  literature  of  his  profes- 
sion, but  proficiency  in  performing  difficult  and 


CONTEACT    OF    THE   PeOFESSION  29 

delicate  operations  comes  only  through  experience. 
His  opportunities  for  acquiring  skill  are  limited. 
Here  is  an  illustration:  In  the  case  of  Small 
V.  Howard  (128  Mass.,  131),  a  physician  and  sur- 
geon was  sued  for  negligently  treating  and  dress- 
ing an  injury  to  the  wrist  of  the  plaintiff.  It 
appeared  that  the  defendant  was  a  practitioner  in 
a  small  town.  The  wound  was  a  very  severe  one, 
having  been  caused  by  glass,  and  the  inside  of  the 
wrist  was  cut  to  the  bone,  severing  all  the  tendons 
and  arteries.  The  court  charged  the  jury  as  to 
the  degree  of  skill  and  learning  it  was  incumbent 
on  the  defendant  to  possess,  that  ''the  defendant, 
undertaking  to  practise  as  a  physician  and  sur- 
geon in  a  town  of  comparatively  small  population, 
was  bound  to  possess  that  skill  only  which  phy- 
sicians and  surgeons  of  ordinary  ability  and  skill, 
practising  in  similar  localities,  with  opportunities 
for  no  larger  experience,  ordinarily  possess;  he 
was  not  bound  to  possess  that  high  degree  of  art 
and  skill  possessed  by  eminent  surgeons  practising 
in  large  cities  and  making  a  specialty  of  the  prac- 
tice of  surgery. ' '  It  was  held  by  the  higher  court 
that  there  was  no  error  in  this  charge.  The  court 
in  pronouncing  it  correct  said:  ''It  is  a  matter  of 
common  knowledge  that  a  physician  in  a  small 
country  village  does  not  usually  make  a  specialty 
of  surgery,  and,  however  well  informed  he  may  be 
in  the  theory  of  all  parts  of  his  profession,  he 
would,  generally  sjoeaking,  be  but  seldom  called 
upon  as  a  surgeon  to  perfoiin  difficult  operations, ' ' 


30  The  Doctok  in  Court 

It  has  been  held  that  the  skill  and  learning 
essential  for  the  medical  man  to  possess  and  use 
is  not  to  he  tested  by  the  standard  of  the  par- 
ticular neighborhood  in  which  he  carries  on  his 
practice.  Said  the  court  in  Gramm  v.  Boener  (56 
Ind.,  497),  impugning  the  contrary  doctrine: 
* '  There  might  be  but  a  few  practising  in  the  given 
locality,  all  of  whom  might  be  quacks,  ignorant  pre- 
tenders to  knowledge  not  possessed  by  them,  and  it 
would  not  do  to  say,  that,  because  one  possessed 
and  exercised  as  much  skill  as  the  others,  he  could 
not  be  chargeable  with  the  want  of  reasonable 
skill." 

He  is  not  bound  to  exercise  that  skill  which  is 
necessary  to  put  the  patient  in  as  good  condition 
as  he  was  before  the  injury  or  illness.  Thus  it 
was  held  in  McCandless  v.  McWha  (22  Pa.  St.,  261) 
to  be  error  to  instruct  the  jury  that  "the  defendant 
was  bound  to  bring  to  his  aid  the  skill  necessary 
for  a  surgeon  to  set  the  leg  so  as  to  make  it  straight 
and  of  equal  length  with  the  other  when  healed, 
and  if  he  did  not,  he  was  accountable  in  damages 
just  as  a  stonemason  or  bricklayer  would  be  in 
building  a  wall  of  poor  materials,  and  the  wall  fell 
down;  or  if  they  built  a  chimney  and  it  would 
smoke  by  reason  of  a  want  of  skill  in  its  construc- 
tion." 

In  disapproving  of  this  statement  of  the  law, 
the  upper  court  said:  "The  fracture  may  be  so 
complicated  that  no  skill  vouchsafed  to  man  can  re- 
store original  straightness  and  length;  or  the  pa- 


CONTEACT   OF   THE   PeOFESSION  31 

tient  may,  by  wilful  disregard  of  the  surgeon's  di- 
rections, impair  the  effect  of  the  best  conceived 
measures.  He  deals  not  with  insensate  matter  like 
the  stonemason  or  bricklayer,  who  can  choose  their 
materials  and  adjust  them  according  to  mathe- 
matical lines ;  but  he  has  a  suffering  human  being 
to  treat,  a  nervous  system  to  tranquillize,  and  a 
will  to  regulate  and  control."  So  also  the  courts 
have  said  the  physician  and  surgeon  does  not  have 
to  possess  the  highest  degree  of  skill  (Small  v. 
Howard,  128  Mass.,  131;  Howard  v.  Grover,  28 
Me.,  97;  Lamphier  v.  Phipos,  8  Car.  &  P.,  475); 
nor  need  he  be  thoroughly  educated  (Peck  v.  Hut- 
chinson, 88  la.,  320). 

It  must  not  be  thought  when  a  question  of  skill 
and  learning  is  under  consideration  that  the  law 
has  no  regard  for  the  current  state  of  progress  of 
medicine  and  surgery.  For  it  takes  cognizance  of 
such  advancement,  and  methods  fallen  into  desue- 
tude will  not  be  tolerated,  even  though  the  phy- 
sician and  surgeon  carries  on  his  practice  in  a 
thinly  settled  neighborhood  (Ahnond  v.  Nugent,  34 
la.,  300;  McCandless  v.  McAVha,  22  Pa.  St.,  261; 
Haire  v.  Reese,  7  Phila.  (Pa.),  138;  Gates  v. 
Fleischer,  67  Mo.,  504;  Nelson  v.  Harrington,  72 
Wis.,  591;  12  L.  R.  A.,  719;  Small  v.  Howard,  128 
Mass.,  131;  Tefft  v.  Wilcox,  6  Kan.,  33;  Hitchcock 
V.  Burgett,  38  Mich.,  501;  Bigney  v.  Fisher,  26  R. 
I.,  402;  Gillette  v.  Tucker,  67  Ohio  State,  106). 

The  law  imposes  upon  the  physician  and  sur- 
geon the  duty  of  using  reasonable  care^  zeal,  and 


32  The  Doctob  in  Court 

diligence  in  the  treatment  of  every  case  he  engages 
to  attend.  The  criterion  of  what  constitutes  due 
care  on  the  doctor's  part  is  the  same  set  for  cases 
involving  questions  of  skill  and  learning;  that  is, 
the  reasonable  degree  exercised  by  the  average 
members  of  the  profession  similarly  located  (see 
cases  cited  supra).  It  was  said  in  Pike  v.  Hons- 
inger  (155  N.  Y.,  201) :  ''Upon  consenting  to  treat 
a  patient,  it  becomes  his  [the  physician's  and  sur- 
geon's] duty  to  use  reasonable  care  and  diligence 
in  the  exercise  of  his  skill  and  the  application  of 
his  learning  to  accomplish  the  purpose  for  which 
he  was  employed."  This  rule  has  been  very  gen- 
erally followed  by  the  various  States  (McCandless 
V.  McWha,  22  Pa.  St.,  261 ;  McNevins  v.  Lowe,  40 
111.,  210 ;  Patten  v.  Wiggin,  51  Me.,  594 ;  Carpenter 
V.  Blake,  10  Hun  (N.  Y.),  358;  Craig  v.  Chambers, 
17  Ohio  St.,  254). 

In  determining  a  question  of  skill  and  care  it 
is  immaterial  whether  the  physician  was  compen- 
sated for  his  care  of  and  attention  to  the  case.  In 
other  words,  liability  for  negligence  or  malpractice 
may  attach  without  a  contract  for  compensation, 
express  or  implied  (Peck  v.  Hutchinson,  88  la., 
320;  McNevins  v.  Lowe,  40  111.,  209;  DuBois  v. 
Decker,  130  N.  Y.,  325;  Gladwell  v.  Steggall,  5 
Bing.  (N.  C),  773). 

"Whether  the  patient  be  a  pauper  or  a  mil- 
lionaire, whether  he  be  treated  gratuitously  or  for 
reward,  the  physician  owes  him  precisely  the  same 
measure  of  duty  and  the  same  degree  of  skill  and 


CONTEACT   OF    THE   PeOFESSION  33 

care"  (Becker  v.  Janinski,  27  Abb.  N.  C,  45). 
Neither  is  it  material  that  the  medical  attendance  is 
to  be  paid  for  by  some  third  party  (Du  Bois  v. 
Decker,  130  N.  Y.,  325).  It  was  held  in  Higgins  v. 
McCabe  (126  Mass.,  13;  30  Am.  Rep.,  642),  where 
one  who  professed  to  be  a  midwife  volunteered  gra- 
tuitously to  treat  a  child  for  an  eye  trouble  and 
the  child  subsequently  became  blind,  that  such  a 
joerson  not  being  specially  qualified  could  only  be 
required  to  use  that  skill  which  persons  similarly 
cjualified  would  exercise  under  like  conditions. 
The  court  said:  ''To  hold  otherwise  would  be  to 
charge  responsibility  in  large  damages  upon  all 
who  make  mistakes  in  the  performance  of  kindly 
offices  for  the  sick."  It  is  palpable  from  this  case 
that  persons  who  make  no  pretentions  to  possess- 
ing the  skill  and  learning  of  a  regular  practitioner, 
but  put  themselves  in  the  position  of  such  a  one, 
will  not  be  held  to  so  strict  a  degree  of  account- 
ability as  one  who  holds  himself  out  as  a  phy- 
sician and  deceives  the  patient  (Musser  v.  Chase, 
29  Ohio  St.,  577;  see  also  Nelson  v.  Harrington, 
72  Wis.,  591). 

From  a  moral  standpoint  the  doctor  must,  of 
course,  use  the  very  highest  degree  of  care  and 
skill,  but  in  contemplation  of  law  it  is  only  neces- 
sary for  him  to  exercise  that  which  is  ordinary  and 
reasonable  (Leighton  v.  Sargent,  27  N.  H.,  460). 
It  is  apparent  that  some  cases  require  greater  at- 
tention than  others;  there  is  a  great  difference 
between  the  skill  and  caro  which  is  used  in  a  case 


34  The  Doctob  in  Cotjet 

of  typhoid  fever  and  one  of  simple  coryza.  By 
some  courts  the  view  is  held  that  the  measure  of 
care  and  skill  which  the  physician  must  exercise 
is  dependent  upon  the  nature  of  the  complaint 
which  gives  occasion  for  his  employment;  that  is 
to  say,  in  serious  cases  a  greater  degree  of  dili- 
gence and  skill  must  be  used  than  in  cases  of 
minor  importance.  But  the  tendency  of  the  courts 
is  contra  to  this.  It  is  to  the  effect  that  the  de- 
gree of  skill  and  care  required  is  not  to  he  meas- 
ured by  the  condition  of  the  patient  (Utley  v. 
Bums,  70  111.,  162;  Peck  v.  Martin,  17  Ind.,  115; 
Reynolds  v.  Graves,  3  Wis.,  371). 

The  degree  of  skill  and  diligence  which  the  phy- 
sician and  surgeon  is  bound  to  exercise  arises,  as 
we  have  seen,  from  the  undertaking  by  implica- 
tion of  law.  It  is  implied  in  those  cases  where 
there  is  not  an  express  contract.  Obviously  one  who 
professes  to  be  a  specialist  or  possesses  unusual 
endowments  may  hold  himself  out  and  contract 
with  the  patient  as  one  possessed  with  extraordi- 
nary skill  and  learning  in  a  particular  branch 
of  medicine  or  surgery,  not  common  to  the  gen- 
eral practitioner  of  the  profession.  In  such  a  case, 
of  course,  he  is  held  to  a  higher  professional  stand- 
ard. He  must  use  that  care  and  skill  in  diagnosing 
and  treating  a  given  case  which  is  exercised  by 
other  specialists  in  his  particular  line  with  refer- 
ence to  the  state  of  scientific  knowledge  at  the  time 
of  his  treatment  (Pettigrew  v.  Lewis,  46  Kan.,  78; 
Baker  v,  Hancock^  29  Ind.  App.,  456 ;  Feeney  v. 


COFTEACT   or   THE   PEOFESSION  35 

Spaulding,  89  Me.,  Ill;  35  Atl.,  1027;  Williams  v. 
Le  Bar,  141  Pa.  St.,  149 ;  McMurdock  v.  Kimberlin, 
23  Mo.  App.,  523;  Whitesell  v.  HiU,  101  la.,  629). 

This  is  the  age  of  specialization,  and,  owing  to 
the  extended  range  of  scientific  investigation,  it 
becomes  impossible  for  the  average  practitioner  to 
attain  a  use  of  this  knowledge  and  the  develop- 
ment resulting  therefrom  in  the  course  of  his  prac- 
tice. An  oculist  is  one  of  the  many  examples  of 
this.  He  is  held  to  the  same  measure  of  skiU  and 
care  as  others  practising  his  specialty  (Stern  v. 
Lanng,  106  La.,  738).  The  issue  in  such  cases  being 
whether  the  physician  professed  to  be  a  specialist 
and  held  himself  out  as  such,  it  is  a  question  of 
fact  for  the  plaintiff  to  prove  and  the  jury  to  de- 
cide (Baker  v.  Hancock,  29  Ind.  App.,  456  j  McMur- 
dock V.  Kimberlin,  23  Mo.  App.,  523). 

In  addition  to  his  engagement  to  use  due  care 
and  skill  in  diagnosing  and  treating  a  case  the 
medical  practitioner  assumes  an  implied  obliga- 
tion to  use  his  best  judgment  in  matters  of  doubt 
as  to  the  best  course  to  take  (Patten  v.  Wiggin,  51 
Me.,  594 ;  Du  Bois  v.  Decker,  130  N.  Y.,  325 ;  Heath 
v.  Glisan,  3  Ore.,  64). 

The  case  of  Mallen  v.  Bo:yTiton  (132  Mass.,  443) 
was  an  action  against  a  physician  for  improperly 
treating  a  broken  arm.  The  court  of  last  resort 
held  that  the  jury  was  properly  instructed  that, 
'*If  the  defendant  at  any  time  during  his  at- 
tendance upon  the  plaintiff,  either  at  the  time  of 
the  original  injury  or  afterward,  was  uncertain 


36  The  Doctor  ix  Court 

and  in  doubt  as  to  the  extent  and  nature  of  the  in- 
jury he  was  attending  upon,  the  defendant  was 
required  to  use  his  best  judgment  as  to  the  best 
course  of  treatment,  and  also  whether  he  should 
consult  some  competent  surgeon,  if  such  could  be 
found  within  a  reasonable  distance.  If  the  defend- 
ant had  not  the  required  skill  and  experience 
to  treat  the  arm  or  felt  incompetent  to  care  for 
the  injury  he  should  have  temporarily  dressed  it, 
if  necessary,  and  recommended  the  plaintiff  to  a 
more  skilful  surgeon." 

The  physician  and  surgeon,  however,  does  not 
warrant  the  infallibility  of  his  judgment  where  he 
can  prove  that  he  used  reasonable  care  and  pos- 
sessed the  skill  of  the  average  members  of  the  pro-_ 
fession  in  good  standing  in  similar  locahties  (West 
V.  Martin,  31  Mo.,  375;  Jackson  v.  Bumham,  20 
Colo.,  532). 

Naturally  there  can  be  such  a  mistake  of  judg- 
ment as  on  its  face  to  be  repugnant  to  the  belief 
that  the  required  skill  and  diligence  were  used 
(West  V.  Martin,  31  Mo.,  375),  and  it  is  in  those 
cases  where  the  error  is  so  great  or  gross  as  to  im- 
ply a  want  of  ordinary  skill  and  care  that  the  phy- 
sician and  surgeon  is  made  responsible. 

For  example,  a  man  without  any  special  quali- 
fications or  learning  in  the  science  of  medicine  and 
surgery  might  attempt  a  serious  and  delicate  oper- 
ation mth  disastrous  results.  It  might  be  only  the 
result  of  a  mistaken  judgment,  but,  nevertheless, 
he  would  be  liable,  for  he  did  not  have  the  skill  and 


Contract  of  the  Pkopession  S7 

learning  essential  to  qualify  him  to  undertake  such 
an  operation.  The  physician  is  bound  to  employ 
the  remedies  and  appliances  which  experience  and 
reason  dictate  as  being  best  in  aiding  the  patient 
to  a  speedy  recovery,  and  even  though  these  be 
of  the  simplest  kind  he  must  exercise  his  best  judg- 
ment together  with  reasonable  care  and  skill  in 
order  to  absolve  himself  from  liability  (McCandless 
V.  McA^^a,  22  Pa.  St.,  261).  An  improper  diagnosis 
would  not  render  him  liable  if  there  was  no  error 
in  the  treatment  following  such  diagnosis  (Tomer 
V.  Aiken,  126  la.,  114). 

There  is  no  implication  or  presumption  in  the 
contract  of  the  physician  that  he  will  cure  his  pa- 
tient. He  does  not  guarantee,  warrant,  or  insure 
the  success  of  his  treatment  (O'Hara  v.  Wells,  14 
Neb.,  403 ;  Ewing  v.  Goode,  78  Fed.  R.,  442 ;  Link  v. 
Sheldon,  136  N.  Y.,  1 ;  Grainger  v.  Still,  187  Mo., 
197;  Gillette  v.  Tucker,  67  Ohio  St.,106),  and,  even 
though  the  patient  derives  no  advantage  or  bene- 
fit from  his  therapeutic  measures,  there  is  no  pre- 
sumption that  he  did  not  exercise  the  proper 
amount  of  skill  and  learning.  In  other  words,  the 
fact  that  the  physician's  medical  treatment  or  sur- 
gical operation  was  a  failure  does  not  justify  di'aw- 
ing  the  conclusion  that  he  was  not  careful  and  skil- 
ful (Tomer  v.  Aiken,  126  la.,  114 ;  Haire  v.  Reese,  7 
Phila.,  138). 

Judge  Thayer  (Haire  v.  Reese,  7  Phila.,  138) : 
*  *  No  presumption  of  the  absence  of  proper  skill  and 
attention  arises  from  the  mere  fact  that  the  patient 


38  The  Doctor  in  Court 

does  not  recover.  .  .  .  God  forbid  the  law 
should  apply  any  rule  so  rigorous  and  unjust  as 
that  to  the  relations  and  responsibilities  arising  out 
of  this  noble  and  humane  profession." 

Fonner  President  Taft  while  sitting  on  the 
bench  in  the  case  of  Ewing  v.  Goode  (78  Fed.,  442) 
said:  "A  physician  is  not  a  warrantor  of  cures." 
If  **a  failure  to  cure  was  held  to  be  evidence, 
however  slight,  of  negligence  on  the  part  of  the 
physician  or  surgeon  causing  the  bad  result,  few 
would  be  courageous  enough  to  practise  the  heal- 
ing art,  for  they  would  have  to  assume  financial 
liability  for  nearly  all  the  411s  that  flesh  is  heir 
to.'  " 

An  important  principle  of  law  governing  the 
conduct  of  the  physician  and  surgeon  is  that  he 
must  follow  in  a  given  case  the  established  custom 
or  practice  of  the  profession  in  treating  that  par- 
ticular kind  of  case  (Patten  v.  Wiggin,  51  Me.,  594). 
The  law  deals  mercilessly  with  those  who  for  the 
purpose  of  expeiimentation  deviate  from  the  estab- 
lished mode  of  practice;  that  is  to  say,  the  phy- 
sician is  held  to  methods  which  have  been  uni- 
versally accepted  by  the  majority  of  the  pro- 
fession. As  was  said  in  the  well-considered  ease  of 
Jackson  v.  Bumham  (20  Colo.,  532),  ''There  must 
be  some  criterion  by  which  to  test  the  proper  mode 
of  treatment  in  a  given  ease,  and  when  a  par- 
ticular mode  of  treatment  is  upheld  by  the  con- 
sensus of  opinion  among  the  members  of  the  pro- 
fession, it  should  be  followed  by  the  ordinary  prac- 


Contract  of  the  Profession  39 

titioner,  and  if  a  physician  sees  fit  to  experiment 
with  some  other  mode,  he  should  do  so  at  his 
peril.  In  other  words,  he  must  be  able,  in  case 
of  deleterious  results,  to  satisfy  the  jury  that  he 
had  reason  for  the  faith  that  was  in  him, 
and  justify  his  experiment  by  some  reasonable 
theory." 

The  physician  and  surgeon,  then,  acts  at  his 
peril  in  not  following  established  practice,  and,  If 
he  employs  some  other  method  than  that  which 
is  generally  followed,  with  an  injurious  result  to 
his  patient,  such  failure  of  his  experiment  will 
not  be  excused,  regardless  of  the  amount  of  skill 
he  possessed  (Patten  v.  Wiggin,  51  Me.,  594 ;  Jack- 
son V.  Bumham,  20  Colo.,  532). 

This  rule  on  its  face  seems  harsh  and  arbitrary, 
for  its  application  and  enforcement  means  that  any 
advancement  in  the  science  of  medicine  and  sur- 
gery must  be  at  the  risk  of  the  individual  mem- 
bers of  the  profession.  To  the  profession  this 
must  be  still  more  apparent  when  they  look  back 
over  the  various  periods  of  medical  and  surgical 
history  and  see  the  marvellous  progress  which  has 
been  achieved  by  the  experiments  of  the  learned 
ones  of  the  profession.  But  such  is  the  law  with 
certain  modifications  and  it  should  be  kept  in  mind 
by  the  physician  and  surgeon. 

The  reason  for  the  rule  and  a  good  statement 
of  the  law  relating  to  this  question  is  in  the  opinion 
of  the  court  in  Carpenter  v.  Blake  (60  Barb.  (N. 
Y.) ,  488) .    It  was  said,  *  *  Some  standard,  by  which 


40  The  Doctor  in  Court 

to  determine  the  propriety  of  treatment,  must  be 
adopted;  otherwise  experiment  will  take  the  place 
of  skill,  and  the  reckless  experimentalist  the  place 
of  the  educated,  experienced  practitioner. 

'  'If  the  case  is  a  new  one,  the  patient  must  trust 
to  the  skill  and  experience  of  the  surgeon  he  calls ; 
so  must  he  if  the  injury  or  the  disease  is  attended 
with  injury  to  other  parts,  or  other  diseases  have 
developed  themselves,  for  which  there  is  no  estab- 
lished mode  of  treatment.  But  when  the  case  is 
one  as  to  which  a  system  of  treatment  has  been  fol- 
lowed for  a  long  time,  there  should  be  no  de- 
parture from  it,  unless  the  surgeon  who  does  it  is 
prepared  to  take  the  risk,  by  his  success,  of  the 
propriety  and  safety  of  his  experiment. 

"The  rule  protects  the  community  against 
reckless  experiments  while  it  admits  the  adoption 
of  new  remedies  and  modes  of  treatment  only 
when  their  benefits  have  been  demonstrated,  or 
when  from  the  necessity  of  the  case,  the  surgeon 
or  physician  must  be  left  to  the  exercise  of  his 
own  skill  and  experience." 

Ordinary  and  established  practice  means  the 
recognized  practice  of  the  school  which  the  phy- 
sician follows.  It  is  his  right,  should  his  conduct 
be  questioned,  to  have  his  actions  tested  by  the 
laws  and  customs  of  the  particular  school  to  which 
he  adheres.  Thus,  where  a  physician  was  sued  for 
not  properly  treating  a  case,  his  conduct  would 
not  be  judged  by  allopathic  standards  if  he  fol- 
lowed the  homeopathic  school  (Force  v.  Gregory, 


CONTEACT   OF   THE   PKOFESSION  41 

63  Conn.,  167),  and  the  same  rule  would  apply  un- 
der reverse  circumstances  (Martin  v.  Courtney,  75 
Minn.,  255),  but,  where  the  treatment  is  the  same 
the  evidence  of  a  physician  of  a  different  school 
has  been  held  to  be  admissible  (Grainger  v.  Still, 
187  Mo.,  197) .  The  term  school  is  used  in  this  con- 
nection to  denote  a  recognized  system  of  treating 
diseases  and  injuries,  and  must  have  rules  of  prac- 
tice (Nelson  v.  Harrington,  72  Wis.,  591;  Grainger 
V.  Still,  187  Mo.,  197). 

So  where  a  person  practises  as  a  clairvoyant 
and  tries  to  alleviate  diseases  by  methods  usually 
employed  by  such  healers,  he  cannot  justify  his 
conduct  on  the  plea  that  he  was  following  the 
school  to  which  he  belonged.  For  such  persons  are 
held  to  the  same  degree  of  care  and  skill  and  learn- 
ing as  a  member  in  good  standing  of  a  recognized 
school  (Nelson  v.  Harrington,  72  Wis.,  591).  The 
law  does  not  distinguish  between  schools  of  medi- 
cine (AVhite  V.  Carroll,  42  N.  Y.,  161),  and  in  as- 
suming charge  of  a  case  the  physician  undertakes 
to  treat  it  according  to  the  rules  of  the  school 
which  he  follows  (Force  v.  Gregory,  63  Conn.,  167; 
Patten  v.  Wiggin,  51  Me.,  594). 

The  principle  of  ordinary  care  likewise  applies 
in  giving  proper  instructions  to  the  nurse  or  other 
person  or  persons  in  attendance  on  the  patient. 
Failure  to  do  so  renders  the  physician  liable  if 
there  are  bad  results  due  to  his  negligence  (Beck 
V.  German  Klinik,  78  la.,  696).  It  is  incumbent 
upon  the  physician  to  exercise  that  degree  of  care 


42  The  Doctor  in  Couet 

in  instructing  the  attendants  in  cases  where  the 
patient  needs  attention  in  his  absence,  which  he 
wonld  if  working  himself  upon  the  case  (Pike  v. 
Honsinger,  155  N.  Y.,  201),  and  it  is  also  his  duty 
to  instinict  the  patient  as  well  as  the  nurse  (Car- 
penter V.  Blake,  60  Barb.  (N.  Y.),  488).  But  there 
is  no  duty  imposed  upon  the  physician  himself  to 
nurse  his  patient  (Graham  v.  Gautier,  21  Tex., 
111). 

There  is  a  correlative  duty  on  the  part  of  the 
patient  to  do  as  he  is  told;  that  is,  he  must  co- 
operate with  the  physician  and  follow  his  instruc- 
tions and  prescriptions  (Haire  v.  Reese,  7  Phila., 
138).  If  he  refuses  to  do  this  and  the  physician 
cannot  therefore  discover  the  nature  of  the  pa- 
tient's illness,  or  he  is  thwarted  in  an  attempt  to 
apply  the  proper  means  of  remedying  the  com- 
plaint, then  the  physician  cannot  be  held  respon- 
sible for  damaging  results  (McCandless  v.  McWha, 
22  Pa.  St.,  261;  Haire  v.  Eeese,  supra). 

The  patient  has  a  right  to  rely  on  the  instruc- 
tions and  directions  which  the  physician  gives  him 
(Lawson  v.  Conaway,  37  W.  Va.,  159 ;  18  L.  E.  A., 
627).  As  was  said  in  the  case  of  McCandless  v. 
McWha  (22  Pa.  St.,  261),  *'A  patient  is  bound  to 
submit  to  such  treatment  as  his  surgeon  prescribes, 
provided  the  treatment  be  such  as  a  surgeon  of 
ordinary  skill  would  adopt  or  sanction.  But  if  it 
be  painful,  injurious  and  unskilful,  he  is  not  bound 
to  peril  his  health,  and  perhaps  his  life,  by  submis- 
sion to  it.    It  follows  that  before  the  surgeon  can 


Contract  of  the  Profession  43 

shift  the  responsibility  from  himself  to  the  patient, 
on  the  ground  that  the  latter  did  not  submit  to  the 
course  recommended,  it  must  be  shown  that  the 
prescriptions  were  proper  and  adequate  to  the  end 
in  view." 

Physicians  who  are  attending  clients  with  con- 
tagious diseases  and  visiting  others  who  are  not  so 
infected  must  keep  in  mind  that  it  is  their  duty  to 
use  due  care  in  not  carrying  it  from  one  patient  to 
another;  and  that  it  is  essential  that  they  should 
take  all  measures  to  prevent  this  which  reason  and 
experience  dictate  as  being  best.  If  they  take  such 
precautionary  measures  as  are  necessary  to  pre- 
vent communication  of  the  disease  to  one  not  im- 
plicated, they  will  not  be  liable  for  untoward  re- 
sults (Piper  V.  Menifer,  51  Ky.,  565). 

Extreme  care  should  be  taken  by  the  physician 
in  making  his  calls  not  to  visit  a  patient  should  he 
have  been  obliged  to  attend  one  afflicted  with  a 
contagious  disease,  without  having  first  properly 
sterilized  himself. 

An  excellent  example  of  the  serious  conse- 
quences that  are  likely  to  follow  a  lack  of  care  un- 
der such  circumstances  has  been  called  to  the  at- 
tention of  the  writer.  During  an  epidemic  of 
smallpox  in  London  a  few  years  ago,  a  doctor  who 
had  vaccinated  the  whole  staff  of  a  large  draper's 
establishment  there,  complained  to  the  physician 
from  whom  he  had  secured  the  vaccine  that  a  num- 
ber of  young  women  whom  he  had  vaccinated  had 
shown  symptoms  of  erysipelas  a  few  days  after  th« 


44  The  Doctor  in  Court 

vaccination.  They  threatened  to  sue  him  for  dam- 
ages. 

Being  responsible  for  the  trouble  the  doctor 
put  the  blame  on  the  vaccine.  The  other  physician 
knowing  the  vaccine  was  absolutely  pure  as  it  came 
from  a  government  institute  on  the  continent  and 
as  he  had  sold  a  great  many  thousands  of  tubes 
and  had  no  similar  complaints  for  the  same  lot, 
suspected  that  there  was  something  wrong  with 
this  doctor.  He  inquired  of  the  doctor  if  during 
the  time  he  made  the  vaccinations  he  had  been  at- 
tending any  obstetrical  cases.  The  doctor  admit- 
ted he  had,  and  also  admitted  that  among  these 
cases  he  had  had  one  case*  of  puerperal  fever.  The 
other  immediately  charged  him  with  not  having 
comi^lied  with  the  Parliamentary  Act  of  having  re- 
ported erysipelas  to  the  medical  officer  of  health 
for  his  district  and  charged  him  further  with  hav- 
ing been  careless  in  going  from  a  puerperal  fever 
case  to  perform  the  operation  of  vaccination  with- 
out having  sterilized  himself. 

When  the  doctor  reached  his  office  he  found  a 
notification  from  the  government  demanding  an  ex- 
planation as  to  why  he  had  not  reported  a  certain 
case  of  erysipelas  which  had  broken  out  in  a  cer- 
tain draper  *s  establishment.  The  penalties  in  Eng- 
land for  not  lodging  information  of  any  contagious 
diseases  are  very  heavy,  and  this  young  doctor 
disappeared  from  London  and  his  whereabouts 
were  not  known  for  a  long  time.    He  had  quit  his 


CONTEACT   OF    THE   PeOPESSION  45 

practice  and  settled  down  somewhere  else.  He 
feared  the  consequences  of  his  negligence. 

There  is  a  further  duty  on  the  physician  of  ad- 
vising his  patient  against  an  operation  which  he 
believes  in  the  light  of  his  best  judgTaent  to  be  in- 
judicious. ''It  seems  to  us  to  be  the  duty  of  a 
surgeon,"  said  the  court  in  Gramm  v.  Boener  (56 
Ind.,  497),  "when  called  upon  to  perform  some 
surgical  operation,  to  advise  against  it,  if,  in  his 
opinion,  it  is  unnecessary,  unreasonable,  or  will  re- 
sult injuriously  to  the  patient.  The  patient  is  en- 
titled to  the  benefit  of  his  judgment,  whether  asked 
for  or  not.  If  the  surgeon,  when  called  upon, 
should  proceed  to  the  performance  of  the  opera- 
tion, without  expressing  any  opinion  as  to  its  ne- 
cessity or  propriety,  the  patient  would  have  a  right 
to  presume,  that,  in  the  opinion  of  the  surgeon,  the 
operation  was  proper."  In  this  case  the  patient 
was  a  man  along  in  years  and  possessed  of  a  nor- 
mal mind.  He  insisted  contrary  to  the  advice  of 
his  physician  that  a  certain  operation  be  performed. 
It  was  done.  The  court  held  that  he  relied  on  his 
own  judgment  and  not  that  of  his  physician,  from 
whom  he  could  not  therefore  recover  damages  for 
deleterious  results. 

There  seems  to  be  a  very  prevalent  idea  that 
if  a  physician  is  summoned  to  attend  a  case,  he  is 
obliged  to  go,  but  no  such  rule  of  law  obtains,  and 
the  matter  is  entirely  witliin  his  own  discretion. 
However,  once  he  has  taken  charge  of  a  case,  the 
doctrine  of  ordinary  care  applies  in  the  matter  of 


46  The  Doctob  in  Court 

attendance.  If  the  condition  of  the  patient  is  such 
that  in  the  exercise  of  an  honest  judgment  he  be- 
lieves it  necessary  or  if  it  would  be  reasonably  ex- 
pected of  him  to  continue  his  attendance,  then  the 
law  imposes  that  obligation  upon  him.  Of  course, 
there  is  nothing  to  prevent  a  physician  and  his 
client  making  what  contract  they  like  regarding 
the  attendance.  It  can  be  for  a  long  or  short  pe- 
riod— even  one  visit;  and  in  the  absence  of  any 
special  agreement  the  physician  can,  after  giving 
reasonable  notice,  stop  attending  the  patient,  and 
by  so  doing  he  does  not  render  himself  answerable 
to  his  employer.  The  physician,  of  course,  could 
not  abandon  a  case  in  a  crisis  (Barbour  v.  Martin, 
62  Wis.,  536).  On  the  other  hand,  if  he  is  dis- 
charged by  one  in  authority  he  would  not  be  liable 
for  the  consequences  of  discontinuing  his  atten- 
tions. Generally,  however,  he  must  use  reasonable 
care  in  deciding  whether  his  visits  are  any  longer 
necessary  (Dashiell  v.  Griffith,  84  Md.,  363;  Ballou 
V.  Prescott,  64  Me.,  305). 

In  fine  the  duties  and  legal  obligations  of  the 
physician  and  surgeon  can  be  summed  up  in  the 
saying  of  Sir  Anthony  Fitzherbert:  "It  is  the  duty 
of  every  artificer  to  exercise  his  art  rightly,  and 
truly,  as  he  ought."  (Further  authorities;  Amer- 
ican Digest  (Century  Edition),  title,  ''Physicians 
and  Surgeons,"  §§  16-30;  Vol.  22,  American  and 
English  EncyclopaBdia  of  Law,  pp.  798-809;  Vol. 
30,  Cyclopedia  of  Law  and  Procedure,  pp.  1570- 
1574.) 


CHAPTER  in 

CIVIL    RESPONSIBILITY    OF    THE    PROFESSION 

It  has  been  shown  that  the  correlative  duties 
of  physicians  and  surgeons  and  their  patients  arise 
from  the  contractual  relations  of  the  parties,  either 
by  express  agreements,  or,  as  is  more  often  the 
case,  by  implication  of  law  from  their  conduct  or 
acts.  Certain  duties  are  imposed  upon  the  profes- 
sion. Failure  to  discharge  these  obligations  in  the 
proper  manner  renders  the  professional  man  lia- 
ble to  his  patient  if  injury  results.  The  basic  prin- 
ciple of  the  doctrine  is  that  one  who  engages  to 
undertake  the  performance  of  any  duty,  trust,  or 
employment  agrees  to  do  it  with  honesty,  skill, 
and  assiduity.  The  injured  person  has  his  option 
of  suing  in  tort, or  contract  (Goble  v.  Dillon,  86 
Ind.,  327). 

The  principles  of  law  which  bear  upon  ques- 
tions growing  out  of  an  alleged  dereliction  of  duty 
on  the  part  of  the  physician  and  surgeon  come  un- 
der the  division  known  as  the  law  of  negligence. 
Negligence  may  be  by  errors  of  omission  or  com- 
mission. If  one  fails  to  do  something  which  a  rea- 
sonable man  under  like  circumstances  with  regard 
to  those  things  which  ordinarily  regulate  the  af- 

47 


48  The  Doctoe  if  Coiikt 

fairs  of  man,  would  do ;  or  if  he  does  some  act  which 
a  reasonable  and  prudent  man  would  not,  then  he 
is  in  the  legal  sense  negligent,  provided  there  is 
some  duty  or  obligation  left  uncompleted.  It  would 
seem  from  an  examination  of  malpractice  cases 
that  errors  of  omission  are  treated  with  greater 
leniency  by  the  courts  than  errors  of  commission. 

Now  there  are  various  degrees  of  negligence 
known  to  the  law.  The  degrees  of  care  exacted 
under  different  conditions  may  be  divided  into 
three  groups.  First,  there  is  the  highest  degree 
which  it  is  possible  for  human  beings  to  attain, 
where  the  slightest  error  renders  the  negligent 
party  liable  in  an  action  for  damages. 

For  example,  a  common  carrier  of  passengers 
is  held  to  this  highest  degree  of  care,  though  as 
has  been  observed  the  physician  and  surgeon  is 
not  required  to  exercise  this  extraordinary  degree 
of  diligence.  But  he  must  employ  the  next  de- 
gree, known  as  ordinary  or  reasonable  care.  (See 
the  instructions  to  the  jury  in  the  case  of  Kendall 
V.  Brown,  86  lU.,  387.) 

Lastly,  we  have  what  is  termed  gross  negli- 
gence, which  may  be  so  wilful  or  wanton  as  to 
show  an  intent  to  harm  some  person,  yet  one  may 
be  grossly  negligent  without  the  element  of  malice 
entering  his  conduct. 

In  England  formerly  the  physician  was  consid- 
ered liable  only  so  far  as  one  who  performs  a 
service  gratuitously  was  held  amenable  to  the  law, 
which  was  for  failure  to  use  the  lowest  degree  of 


Civil  Responsibility  49 

care  in  the  scale  called  gross  negligence.  A  phy- 
sician at  common  law  before  the  passage  of  the 
Medical  Act  (21  and  22  Victoria)  could  not  sue 
to  recover  compensation  for  his  services  (Chorley 
V.  Bolcot,  4  T.  R.,  317) ;  though  a  surgeon  was  not 
subject  to  any  such  disability  and  could  maintain 
an  action  for  his  fees.  (See  chapter  on  Remunera- 
tion.) Accordingly,  surgeons  as  well  as  apothe- 
caries were  held  to  the  ordinary  degree  of  care. 
(Shearman  and  Redfield  on  Negligence,  500.)  The 
reason  for  not  then  holding  the  physician  to  the 
same  degree  of  care  as  a  surgeon  was  because  his 
services  were  regarded  as  being  rendered  for  an 
honorarium. 

The  Roman  law,  however,  did  not  recognize  any 
difference  between  physicians  and  surgeons,  hold- 
ing that  they  must  use  ordinary  care  regardless  of 
whether  they  were  to  be  compensated  or  not.  Such 
is  the  United  States  rule.  The  law  in  this  country 
does  not  distinguish  between  physicians  and  sur- 
geons. They  are  alike  subject  to  the  same  duties 
and  legal  obligations.  Compensation  is  an  imma- 
terial consideration.  (See  chapter  on  Remunera- 
tion.) 

There  is  an  old  and  important  principle  of  law 
that  figures  prominently  as  a  defence  in  many 
cases  where  negligence  is  the  gist  of  the  action.  It 
is  called  the  doctrine  of  contributory  negligence. 
Where  a  person  is  injured  by  reason  of  another's 
negligence,  it  must  appear  as  a  condition  precedent 
to  his  getting  judgment  against  the  other  that  his 


50  The  Docto:b  in  Court 

own  conduct  was  blameless  and  did  not  contribute 
materially  to  the  cause  of  the  injuries.  For,  if  his 
negligence  united  with  that  of  the  defendant,  he  is 
barred  from  recovering  damages. 

This  rule  with  its  limitations  applies  in  those 
cases  where  it  is  sought  to  hold  a  physician  and 
surgeon  responsible  for  negligence  or  malpractice, 
and  it  may  be  taken  as  generally  true  that  where 
the  patient  does  not  co-operate  with  his  physician, 
thereby  injuring  himself  by  his  own  wilful  or 
negligent  conduct,  he  cannot  hold  the  practitioner 
responsible  for  the  results  to  which  he  contributed 
(Hibbard  v.  Thompson,  109  Mass.,  286;  Gramm  v. 
Boener,  56  Ind.,  497 ;  Haire  v.  Eeese,  7  Phila.,  138 ; 
McCandless  v.  McWha,  22  Pa.  St.,  261).  Accord- 
ingly it  has  been  held  that  where  a  physician  told 
a  patient  to  visit  him  again  and  the  patient  failed 
to  put  in  an  appearance  as  directed,  he  could  not 
hold  the  physician  liable,  because  he  was  himself 
negligent  (Jones  v.  Angell,  95  Ind.,  376). 

By  far  the  greater  number  of  cases  in  which 
this  question  of  contributory  negligence  plays  a 
part  has  been  where  the  patient  has  not  faithfully 
discharged  his  duty  of  complying  with  the  reason- 
able instructions  and  directions  of  his  physician 
as  the  law  says  he  should  (Haire  v.  Reese,  7  Phila., 
138 ;  McCandless  v.  McWha,  22  Pa.  St.,  261) .  The 
case  given  above  is  a  good  illustration.  There  is 
a  harmonious  line  of  decisions  holding  that  if  the 
patient  either  wilfully  or  negligently  disobeys  the 
instructions  given  him  he  is  barred  from  recovery 


Civil  Responsibility  51 

(Geiselman  v.  Scott,  25  Ohio  St.,  S6;  Haire  v. 
Eeese,  7  Phila.,  138 ;  Whitesell  v.  Hill,  101  la,,  629), 
and  it  makes  no  difference  whether  or  not  he  was 
prevented  from  following  the  physician's  direc- 
tions because  of  his  condition  (Geiselman  v.  Scott, 
25  Ohio  St.,  86).  In  such  cases  the  instnictions 
and  directions  which  the  physician  gives  may  be 
taken  into  consideration  in  determining  the  ques- 
tion of  the  patient's  negligence  (Geiselman  v. 
Scott,  25  Ohio  St.,  86). 

There  is  also  a  presumption  in  favor  of  the 
members  of  the  profession,  in  the  absence  of  con- 
trary proof,  that  they  were  skilful  and  used  due 
care  (Jacksonville  Street  R.  Co.  v.  Chappell,  21 
Fla.,  175;  Leighton  v.  Sargent,  31  N.  R,  119; 
Baird  v.  Morford,  29  la.,  531;  Haire  v.  Reese,  7 
Phila.,  138).  In  other  words  the  burden  of  show- 
ing a  want  of  the  necessary  skill,  care  and  knowl- 
edge in  the  prescriptions,  directions,  and  method 
of  treatment  must  be  proved  at  the  trial  by  the 
patient  in  order  to  secure  judgment  against  the 
physician.  On  the  other  hand  the  burden  of  prov- 
ing contributory  negligence  is  on  the  defendant 
(Gramm  v.  Boener,  56  Ind.,  497). 

There  is,  however,  a  class  of  cases  in  which  the 
negligence  of  the  patient  follows  that  of  the  phy- 
sician and  the  injury  done  through  the  latter 's  un- 
skilful or  careless  conduct  is  simply  aggravated 
and  made  more  serious.  In  a  New  York  case  (Car- 
penter V.  Blake,  75  N.  Y.,  12),  which  was  an  ac- 
tion for  malpractice,  the  defendant  requested  the 


52  The  Doctor  in  Couet 

court  to  instruct  the  jury  in  substance,  that  if  the 
plaintiff  was  negligent  in  any  way,  with  or  with- 
out guilt  on  the  part  of  the  defendant  who  attended 
her,  and  such  negligence  in  a  material  degree  con- 
tributed to  the  poor  result,  tlie  defendant  could 
not  be  held  responsible.  This  charge  was  held  to  be 
erroneous  because  if  there  had  been  negligence  on 
the  part  of  the  plaintiff  subsequent  to  that  of  the 
defendant,  the  plaintiff's  right  of  action  had  al- 
ready accrued  and  would  not  therefore  be  dis- 
charged. The  court  added  that  in  any  view  the 
negligence  of  the  patient  following  that  of  the  phy- 
sician would  go  merely  to  mitigate  the  damages. 

So  also  in  a  case  where  the  plaintiff's  foot  was 
crushed  and  the  limb  was  amputated  at  the  knee 
but  failed  to  heal  properly  so  that  several  inches 
of  the  bone  protruded,  it  was  held,  the  fact  that 
the  defendant  refused  to  keep  his  leg  elevated  as 
directed,  thereby  causing  hemorrhages,  and  negli- 
gently omitted  to  take  medicine  prescribed  for  him, 
did  not  defeat  his  right  of  action  and  his  negligence 
would  only  go  toward  cutting  down  the  amount  of 
damages  (Du  Bois  v.  Decker,  130  N.  Y.,  325 ;  see, 
also,  Wilmot  v.  Howard,  39  Vt.,  447). 

The  negligence  of  the  plaintiff  then  must  be 
the  proximate  cause  of  the  injury  and  inseparable 
from  and  contemporaneous  with  the  negligence  of 
the  defendant  in  order  to  be  used  as  a  successful 
defence  in  an  action  for  malpractice  (Newhouse  v. 
Miller,  35  Ind.,  463;  Lawson  v.  Conaway,  37  W. 
Va.,  159),  because  if  the  negligence  is  unmixed  and 


Civil  Responsibility  53 

can  be  distinguislied,  and  the  plaintiff  can  show 
that  there  was  injury  resulting  solely  from  his  lack 
of  care,  skill,  and  diligence,  then  he  can  recover. 

The  court  said  in  Hibbard  v.  Thompson  (109 
Mass.,  286),  commenting  on  the  importance  of  this 
limitation  to  the  ordinary  rule,  '*  .  .  .  a  phy- 
sician may  be  called  to  prescribe  for  cases  which 
originated  in  the  carelessness  of  the  patient;  and 
though  such  carelessness  would  remotely  contribute 
to  the  injury  sued  for,  it  would  not  relieve  the 
physician  from  liability  for  his  distinct  negligence, 
and  the  separate  injury  occasioned  thereby.  The 
patient  may  also,  while  he  is  under  treatment,  in- 
jure himself  by  his  own  carelessness,  yet  he  may 
recover  from  the  physician  if  he  carelessly  or  un- 
skilfully treats  him  afterward  and  thus  does  him  a 
distinct  injury.  In  such  cases,  the  plaintiff's  fault 
does  not  directly  contribute  to  produce  the  injury 
sued  for." 

Another  principle  of  law  very  much  like  this 
doctrine  of  contributory  negligence  is  that  of  the 
assumption  of  the  risk.  The  law  says  that  where 
a  person  knows  the  dangers  incidental  to  certain 
undertakings,  he  is  by  law  deemed  to  have  as- 
sumed the  risk  and  consequently  cannot  complain 
if  injury  results.  From  this  it  would  seem  that  a 
physician  and  surgeon  can  forestall  malpractice 
suits  against  himself  by  warning  the  patient  of  un- 
pleasant possibilities  and  expressly  stipulating  with 
him  that  in  such  contingency  he  shall  not  be  an- 
swerable  (Nelson  v.  Harrington,  72  Wis.,  591). 


54  The  Doctor  in  Court 

As  most  of  the  litigation  in  whicli  the  members  of 
the  profession  have  been  involved  have  been  in 
cases  of  dislocations,  fractures,  and  amputations 
(McClelland  on  Civil  Malpractice,  55),  it  is  always 
best  to  tell  the  patient  that  a  perfect  result  is  by 
no  means  certain. 

If  the  physician  states  that  he  is  not  possessed 
of  much  knowledge  of  certain  illnesses  or  injuries, 
and  the  patient  then  sees  fit  to  hire  him,  he  cannot 
afterward  hold  him  to  account  for  a  lack  of  knowl- 
edge and  skill  which  he  knew  the  physician  did 
not  possess  (Shearman  and  Redfield  on  Negligence, 
607). 

It  must  not,  however,  be  supposed  that  this  as- 
sumption of  the  risk  will  excuse  the  practitioner 
from  liability  when  he  does  not  use  skill  and  care. 
This  question  was  squarely  raised  in  a  very  recent 
case  before  the  Missouri  Court  of  Appeals  (Hales 
v.  Raines,  162  Mo.  App.,  46).  The  defendant,  it 
appeared,  undertook  to  treat  the  plaintiff's  hand 
by  the  use  of  the  X-ray,  resulting  in  a  bum  which 
seriously  injured  the  member.  It  was  contended 
that  the  plaintiff  had  been  warned  by  the  defendant 
that  the  use  of  this  appliance  involved  some  dan- 
ger and  by  consenting  to  such  treatment  he  as- 
sumed the  risk  and  could  not  recover  damages  for 
the  negligence  of  the  physician.  The  court  in  up- 
setting this  contention  said :  ' '  Touching  the  matter 
of  assumed  risk  with  which  alone  we  are  con- 
cerned here,  it  appears  quite  clear  that  if,  in  the 
circumstances  stated,   the   parties   contract  with 


Civil  Responsibility  55 

respect  to  the  assumption  of  the  risk  from  such 
danger  as  is  involved  in  the  use  of  the  X-ray,  a 
new  appliance  not  well  understood,  the  risk  assumed 
is  one  other  and  distinct  from  that  which  is  intro- 
duced into  the  case  by  the  defendant's  negligence. 
In  other  words,  though  the  plaintiff  should  be  re- 
garded as  having  assumed  by  express  agreement 
such  risks  as  attend  the  employment  of  the  X-ray, 
this  agreement  essentially  implied  a  careful  and 
skilful  application  thereof  on  the  part  of  the  de- 
fendant. We  deem  it  contrary  to  the  precepts  of 
public  policy  to  declare  such  agreement  vaUd  in 
the  full  measure  of  its  scope  and  entail  upon  the 
plaintiff,  as  within  it,  the  consequences  of  the  de- 
fendant's negligence  in  exposing  his  hand  nine 
separate  times  within  one-half  inch  of  the  tube; 
for  consent  concerning  such  matters  avails  noth- 
ing unless  due  care  and  skill  is  employed  by  the 
physician."  (See,  also.  Commonwealth  v.  Pierce, 
138  Mass.,  165;  State  v.  Gile,  8  Wash.,  12.) 

This  case  must  not  be  confused  with  that  of 
Gramm  v.  Boener,  given  heretofore,  where  a  phy- 
sician advised  his  patient  against  an  injudicious 
operation,  and  the  plaintiff,  relying  on  his  own 
judgment,  insisted  upon  having  it  performed.  The 
operation,  though  unsuccessful,  was  performed  by 
the  physician  with  due  care  and  skill,  and  in  the 
suit  which  followed  the  plaintiff  was  not  allowed  to 
recover  damages. 

The  question  now  arises,  if  the  physician  and 
surgeon  cannot  be  successfully  sued  for  negligence 


56  The  Doctoe  in  Court 

or  malpractice  wlien  tlie  negligence  of  the  patient 
blended  with  his  own  carelessness  or  recklessness, 
can  he  be  held  responsible  for  the  negligent  con- 
duct of  a  third  person  having  some  connection  with 
the  case  1  The  answer  to  this  depends  on  the  rela- 
tionship of  the  parties.  If  there  was  no  business 
relationship  as  that  of  agency  or  partnership 
between  the  physician  and  the  negligent  third 
person,  then  he  cannot  be  held  answerable  for  that 
person's  conduct  (Myers  v.  Holbom,  58  N.  J.  L., 
193;  Hitchcock  v.  Burgett,  38  Mich.,  501;  Keller  v. 
Lewis,  65  Ark.,  578).  Thus  where  a  surgeon  in- 
formed his  patient  that  he  was  going  away  for 
two  weeks  and  said  that  a  certain  surgeon  would 
treat  the  case  while  he  was  absent  and  the  latter 
was  negligent  in  his  treatment  of  the  patient,  the 
court  said  that  the  former  surgeon  would  not  be 
responsible  for  the  injury  done  the  patient  in  his 
absence  if  no  business  relationship  existed  between 
the  two  surgeons  (Keller  v.  Lewis,  65  Ark.,  578). 

The  converse  of  this  proposition  of  law  is  also 
true :  if  the  relationship  of  agency  or  partnership 
can  be  shown  to  exist  they  are  both  liable  to  the 
patient  if  the  negligent  third  party  acted  within 
the  scope  of  his  authority  (Hancke  v.  Hooper,  7 
C.  and  P.,  81;  Hess  v.  Lowrey,  122  Ind.,  225; 
Langdon  v.  Humphrey,  9  Conn.,  209 ;  Hyrne  v.  Er- 
win,  23  S.  C,  226).  The  negligence  of  the  agent 
or  partner  is  imputed  to  the  other. 

The  liability  growing  out  of  these  relationships 
is  not  peculiar  to  physicians  and  surgeons  alone, 


Civil  Eesponsibility  57 

but  is  applicable  to  all  persons  between  whom  such 
relationships  are  manifest.  It  is  a  cardinal  rule 
of  the  law  of  agency  that  tbe  principal  is  liable  for 
the  torts  of  his  agent  committed  in  the  course  of 
his  employment.  The  connection  between  the  law 
of  agency  and  the  law  of  partnership  is  very  close, 
as  a  partner  can  bind  his  co-partner  by  acts  which 
are  within  the  limits  of  the  objects  and  purposes 
of  the  partnership.  It  follows  that  there  is  mutual 
liability  among  partners  for  their  torts  committed 
in  the  scope  of  their  vocation  or  business,  but  if  a 
partner  or  agent  goes  on  a  "frolic  of  his  own"  the 
others  are  not  responsible  for  the  results.  There 
would  be  no  liability  on  the  part  of  a  physician  for 
the  negligence  of  nurses  in  a  hospital  over  whom 
he  had  no  authority  (Sanderson  v.  Holland,  39 
Mo.  App.,  233;  Baker  v.  Wentworth,  155  Mass., 
338). 

Negligence  of  a  third  person  contemporaneous 
with  that  of  the  defendant  is  no  defence  (Cooley 
on  Torts,  684) ;  that  is  to  say,  contributory  negli- 
gence on  the  part  of  another,  not  the  patient,  con- 
curring with  that  of  the  physician  or  surgeon  hav- 
ing charge  of  the  case  cannot  defeat  a  recovery  of 
damages  by  the  patient  against  the  physician  (San- 
derson V.  Holland,  39  Mo.  App.,  233).  For  illus- 
tration: where  a  physician  wrote  a  prescription 
which  by  lapsus  calami  had  pulv.  instead  of  campJi. 
following  opii,  and  the  patient  took  it  and  died,  it 
was  held  in  a  suit  against  the  physician  for  mal- 
practice that  the  fact  that  the  druggist  who  filled 


58  The  Doctor  in  Court 

the  prescription  may  have  been  negligent  in  not 
noticing  the  mistake,  was  no  defence  to  the  phy- 
sician who  wrote  it  (Mnrdock  v.  Walker,  43  111. 
App.,  590). 

There  is  a  principle  of  law  long  established  that 
a  person  is  chargeable  with  the  natural  and  prob- 
able consequences  of  his  acts.  The  physician  and 
surgeon  is  no  exception  to  this  rule.  The  mem- 
bers of  the  profession  in  their  treatment  of  patients 
and  their  application  of  drugs  and  the  remedial  ap- 
pliances are  bound  to  know  the  results  of  their  ac- 
tions and  are  answerable  for  negligence  if  the  con- 
dition of  the  patient  is  such  that,  by  exercising  the 
professional  skill  they  are  presumed  to  have,  they 
would  know  such  results  would  in  all  probability 
follow  (Du  Bois  V.  Decker,  130  N.  Y.,  325). 

But  where  they  have  no  knowledge  of  the 
idiosyncrasies  of  the  patient,  they  cannot  be  held 
for  injurious  results  when  they  exercise  ordinary 
care  and  skill.  So  where  an  anesthetic  is  admin- 
istered the  physician  cannot  be  made  accountable 
for  results  due  to  the  peculiar  temperament  of  the 
patient  of  which  he  was  not  aware  (Bogle  v.  Wins- 
low,  5  Phila.,  136).  If  the  courts  laid  down  a  more 
strict  rule  in  this  respect,  the  nerve  of  the  phy- 
sician might  be  shaken  or  his  judgment  impaired 
by  the  fear  of  accountability  just  at  a  time  when 
his  mental  activity  must  be  free  and  undisturbed, 
that  the  patient  may  be  benefited. 

In  the  chapter  on  the  Contract  of  the  Profession 
it  was  said  that  there  is  a  duty  on  the  part  of  the 


Civil  Eespois^sibility  59 

physician  to  take  care  not  to  carry  a  contagious  dis- 
ease from  one  patient  to  another.  From  a  very  re- 
cent decision  of  the  supreme  court  of  Washington 
(Helland  v.  Bridenstine,  55  Wash.,  470;  104  Pac. 
E.,  626),  it  appears  that  there  may  he  liahility  for 
communicating  diseases  through  the  agency  of  un- 
clean instruments.  In  the  case  in  question  the 
plaintiff  sought  the  advice  of  the  defendant  be- 
cause of  a  nei'vous  trouble  with  which  she  had 
been  afflicted  for  several  years.  The  defendant's 
treatment  not  affording  the  desired  relief,  he  told 
her  it  was  his  opinion  that  she  had  some  disorder 
of  the  genital  organs  and  he  would  examine  her 
in  his  office.  This  he  did,  using  a  speculum  and 
probe  which  he  took  from  a  drawer  close  by.  The 
instruments  were  wrapped  in  a  towel,  the  defend- 
ant using  them  as  he  took  them  out.  Within  the 
time  after  this  usual  for  gonorrhea  to  generate, 
the  plaintiff  had  pains  and  inflammation  of  the 
parts  accompanied  by  a  discharge.  The  defendant 
treated  her  for  some  time  until  finally  another 
physician  was  called  in,  who  diagnosed  the  disease 
as  gonorrhea.  Plaintiff  also  testified  she  had  not 
had  intercourse  with  her  husband  for  several  weeks 
prior  to  the  examination,  and  the  only  way  she 
could  have  contracted  the  disease  was  from  the  in- 
struments of  the  defendant.  The  defendant  testi- 
fied that  the  instruments  were  always  washed  in 
a  mercuric  iodin  solution  and  soap  and  hot  water 
besides  being  sterilized  by  boiling  in  hot  water  be- 
fore they  were  used.    There  was  a  verdict  for  the 


60  The  Doctok  in  Court 

plaintiff.  The  court  held  there  was  sufficient  evi- 
dence to  submit  the  case  to  the  jury. 

An  action  will  lie  against  a  physician  if  he  fails 
to  use  ordinary  care  and  skill  in  diagnosing  a  case 
which  has  been  committed  to  him  for  treatment  or 
merely  for  the  purpose  of  making  an  examination 
for  information,  as  where  a  man  who  was  engaged 
to  be  married  was  examined  at  the  request  of  the 
father  of  his  fiancee,  and  the  physician  making 
the  examination  said  he  was  afflicted  with  a  venereal 
disease,  which  erroneous  diagnosis  resulted  in  the 
breaking  off  of  the  engagement,  the  court  held  that 
damages  could  be  recovered  from  the  physician 
(Harriott  v.  Plimpton,  166  Mass.,  585).  It  made 
no  difference  in  the  above  case  that  the  physician 
was  hired  by  a  third  person. 

While  the  duty  of  being  faithful,  skilful,  and 
careful  in  dealing  with  the  patient  rests  substan- 
tially on  the  ground  of  contract,  it  would  seem  from 
this  case  and  those  cited  elsewhere  that  the  duties 
of  the  physician  and  the  liability  attendant  on  a 
failure  to  discharge  those  duties  properly  may  arise 
from  the  mere  undertaking  or  relationship  of  doc- 
tor and  patient. 

It  is  a  question  of  fact  for  the  jury  to  deter- 
mine as  to  whether  or  not  due  care  and  skill  were 
used  by  the  physician  in  making  the  diagnosis 
(Harriott  v.  Plimpton,  supra).  An  erroneous  di- 
agnosis does  not  necessarily  give  a  right  of  action 
to  the  injured  party,  but  must  have  been  the  result 
of  negligence  or  a  want  of  skill  on  the  part  of  the 


♦  Civil  REspoNSiBiLiTy  .61 

physician,  though  a  wrong  diagnosis  followed  by 
improper  treatmeni  is  good  ground  for  an  action 
for  malpractice  (Smith  v.  Overby,  30  Ga.,  241). 

A  breach  of  the  relationship  between  a  phy- 
sician and  his  patient  by  the  deceit  of  the  former 
may  render  him  liable  to  his  patient.  An  interest- 
ing case  of  this  description  arose  a  few  years  ago 
in  Michigan  (De  May  v.  Roberts,  46  Mich.,  160). 
At  the  trial  it  appeared  that  the  patient  lived  some 
distance  from  the  physician.  It  was  a  confinement 
ease;  the  doctor  was  summoned;  the  night  was 
disagreeable  and  travelling  over  the  road  on  foot 
was  the  only  way  in  which  the  physician  could 
reach  the  patient's  house.  Illness  and  overwork 
prompted  the  doctor  to  take  with  him  an  unpro- 
fessional man  to  assist  him  in  carrying  necessary 
articles.  To  the  husband  of  the  patient  the  doc- 
tor explained  that  he  had  brought  a  friend  along 
to  aid  in  carrying  his  things. 

The  friend  was  not  known  to  either  the  hus- 
band or  the  patient,  but  they  sux)posed  he  was  a 
doctor  or  a  student  and  made  no  objection  to  his 
being  present  in  the  house,  which  had  only  one 
room.  His  conduct  and  manner  was  not  objec- 
tionable. The  Supreme  Court  affirmed  the  judg- 
ment of  the  lower  court  against  the  physician  and 
his  non-professional  assistant,  saying  amongst 
other  things :  ' '  It  would  be  shocking  to  Our  sense 
of  right,  justice  and  propriety  to  doubt  even  but 
that  for  such  an  act  the  law  would  afford  an  ample 
remedy.    To  the  plaintiff  the  occasion  was  a  most 


62  The  Doctor  in  Court 

sacred  one,  and  no  one  had  a  right  to  intrude  un- 
less invited,  or  because  of  some  real  and  pressing 
necessity,  which  it  is  not  pretended  existed  in  this 
case.  The  plaintiff  had  a  legal  right  to  the  privacy 
of  her  apartment  at  such  a  time,  and  the  law  se- 
cures to  her  this  right  by  requiring  others  to  ob- 
serve it  and  to  abstain  from  its  violation.  In  ob- 
taining admission  at  such  a  time  and  under  such 
circumstances  without  fully  disclosing  his  true 
character,  both  parties  were  guilty  of  deceit,  and 
the  wrong  thus  done  entitles  the  injured  party  to 
recover  the  damages  afterward  sustained  from 
shame  and  mortification  upon  discovering  the  true 
character  of  the  defendants. ' ' 

The  performance  of  a  surgical  operation  on  a 
patient  whose  consent  has  not  been  obtained  will 
render  the  operator  liable  in  damages  to  that  per- 
son, as  will  be  seen  by  the  cases  hereinafter  given. 
The  court  of  last  resort  in  Illinois  (Pratt  v.  Davis, 
118  111.  App.,  161)  said  in  a  very  late  case :  '^Under 
a  free  government,  at  least,  the  free  citizen's  first 
and  greatest  right,  which  underlies  all  others — 
the  right  to  the  inviolability  of  his  person ;  in  other 
words,  the  right  to  himself — is  the  subject  of  uni- 
versal acquiescence,  and  this  right  necessarily  for- 
bids a  surgeon  or  physician,  however  skilful  or 
eminent,  who  has  been  asked  to  examine,  diagnose, 
advise  and  prescribe  (which  are  at  least  first  steps 
in  treatment  and  care),  to  violate,  without  permis- 
sion, the  bodily  integrity  of  his  patient  by  a  major 
or  capital  operation,  placing  him  under  anesthetics 


Civil  Responsibility  63 

for  that  purpose,  and  operating  upon  him  without 
his  consent  or  knowledge. ' ' 

A  text  writer  has  this  to  say  (1  Kinkhead  on 
Torts,  375) :  ''The  patient  must  be  the  final  arbiter 
as  to  whether  he  shall  take  his  chances  with  the 
operation,  or  take  his  chances  hving  without  it. 
Such  is  the  natural  right  of  the  individual,  which 
the  law  recognizes  as  a  legal  one.  Consent,  there- 
fore, of  an  individual,  must  be  either  expressly  or 
impliedly  given  before  a  surgeon  has  the  right  to 
operate. ' ' 

Naturally  consent  in  most  cases  is  inferred  from 
the  circumstances  unless  the  patient  was  deceived 
(Pratt  v.  Davis,  224  111.,  300;  7  L.  R.  A.  (N.  S.), 
609).  It  has  been  held  where  the  husband  of  a  pa- 
tient who  had  a  dangerous  disease,  had  the  patient 
taken  some  little  distance  from  their  home  and  put 
under  the  care  of  a  physician,  and  a  few  weeks 
afterward  the  physician  operated  on  her  despite 
the  fact  that  the  husband's  consent  had  not  been 
given  to  that  particular  operation,  that  the  physi- 
cian was  justified  and  did  not  exceed  his  authority 
in  performing  the  operation  if  in  the  exercise  of  his 
discretion  he  believed  it  necessary  (McCallen  v. 
Adams,  19  Pick.  (Mass.),  333). 

In  another  case  (Pratt  v.  Davis,  224  El.,  300; 
7  L.  R.  A.  (N.  S.),  609),  the  patient  was  suffer- 
ing from  a  contracted  and  lacerated  uterus,  and  the 
lower  portion  of  the  rectum  was  diseased.  To  alle- 
viate these  difficulties  a  minor  operation  was  per- 
formed with  the  consent  of  the  patient's  husband. 


64  The  Doctoe  in  Court 

This  operation  was  unsuccessful.  The  husband 
was  requested  to  "bring  his  wife  to  the  physician 
again  for  treatment,  which  he  did.  She  was  oper- 
ated on  and  her  uterus  and  ovaries  removed.  The 
court  held  that  the  husband's  consent  was  not 
shown  by  these  circumstances. 

Again  where  a  woman  was  operated  on  for 
cancer  of  the  breast  and  the  husband  believed  it  to 
be  a  tumor  and  consented  to  the  operation,  but  ex- 
pressly stated  that  if  the  growth  was  a  cancer  of 
the  breast  he  did  not  want  it  removed,  it  was  held 
that  as  it  appeared  the  wife  was  aware  she  had 
cancer  of  the  breast,  the  physician  could  not  be 
held  liable.  Said  the  court;  ''If  she  consented  to 
the  operation,  the  doctors  were  justified  in  per- 
forming it,  if,  after  consultation,  they  deemed  it 
necessary  for  the  preservation  and  prolongation  of 
the  patient's  life.  Surely  the  law  does  not  author- 
ize the  husband  to  say  to  his  wife,  'You  shall  die 
of  cancer;  you  cannot  be  cured,  and  a  surgical 
operation,  affording  only  temporary  relief,  will  re- 
sult in  useless  expense. '  The  husband  has  no  power 
to  withhold  from  his  wife  the  medical  assistance 
which  her  case  might  require"  (State  use  of  Jan- 
ney  v.  Housekeeper,  70  Md.,  162). 

Cases,  of  course,  will  arise  demanding  quick  ac- 
tion on  the  part  of  the  jDhysician  to  preserve  the 
life  or  health  of  the  patient,  when  there  will  be  no 
opportunity  to  secure  consent  to  perfoiin  an  opera- 
tion from  those  who  are  naturally  consulted  in 
such  matters.    Perhaps  a  person  meets  with  an  ac- 


Civil  Responsibility  65 

cidental  injury  and  is  taken  to  a  private  physician 
close  by.  The  injured  person  may  be  intoxicated, 
or  unconscious  from  the  injury.  He  may  be  a 
minor ;  there  may  be  no  means  of  identifying  him. 
An  operation  is  imperative.  The  doctor  is  justified 
in  performing  the  operation  if  in  the  light  of  his 
bfest  judgment  it  is  necessary.  If  he  uses  the  req- 
uisite skill  and  care  in  so  doing,  he  will  not  be 
responsible  for  the  results. 

As  the  physician  or  surgeon  may  be  subse- 
quently criticised  or  even  sued  for  malx)ractice,  it 
is  best  for  him  to  do  eveiything  to  protect  himself. 
Thus  in  the  case  of  a  private  physician  it  would 
be  a  good  precautionary  measure  for  him  to  call  in 
another  member  of  the  profession  in  consultation. 
Any  case  must  be  proved  from  the  attending  cir- 
cumstances, and  other  evidence  besides  that  of  the 
defendant  himself  in  his  behalf  is  invaluable. 
Again,  during  an  operation  already  authorized, 
new  conditions  may  be  discovered  or  may  develop 
in  the  most  unexpected  manner,  and  in  such 
emergency  cases  the  physician  will  be  justified  in 
performing  an  operation  without  any  consent,  if 
the  operation  is  necessary  and  expedient  (Pratt  v. 
Davis,  supra;  Mohr  v.  "Williams,  95  Minn.,  261; 
1  L.  R.  A.  (K  S.),  439).  It  has,  however,  been  de- 
cided that  the  fact  of  a  doctor's  refusing  assist- 
ance which  was  offered  by  other  members  of  the 
profession  did  not  mean  that  he  failed  to  use  the 
skill  and  care  required  (Potter  v.  Warner^  91  Pa. 
St.,  362). 


66  The  Doctor  in  Court 

In  all  these  cases  of  alleged  unauthorized  sur- 
gical operations  the  burden  of  proving  that  the 
operation  was  not  justified  by  consent  of  the  proper 
person  rests  upon  the  plaintiff.  There  is  also  a 
prima  facie  presumption  that  it  was  performed 
with  care  and  skill  in  the  belief  that  it  was  proper 
(State  use  of  Janney  v.  Housekeeper,  70  Md.,  162). 

The  criterion  of  careful  conduct  in  a  given  case, 
as  was  stated  at  the  outset  of  this  chapter,  is  that 
of  the  usually  prudent  man  acting  under  like  cir- 
cumstances. It  is  not  the  opinion  of  the  individual 
and  therefore  it  is  ordinarily  no  defence  to  an  ac- 
tion for  negligence  that  the  man  acted  according 
to  his  best  judgment.  There  is,  however,  a  well- 
recognized  variation  from  this  general  principle  or 
rule  of  law.  It  appears  in  cases  involving  ques- 
tions purely  of  theory  or  opinion  or  judgment. 
Judge  Jaggard;  in  Staloch  v.  Holm  (100  Minn., 
276;  9  L.  R.  A.  (N.  S.),  712 ;  111  N.  W.,  264),  after 
stating  that  malpractice  cases  may  come  within  this 
exception  to  the  general  rule,  said:  "A  physician 
entitled  to  practise  his  profession,  possessing  the 
requisite  qualifications,  and  applying  his  skill  and 
judgment  with  due  care,  is  not  ordinarily  liable  for 
damages  consequent  upon  an  honest  mistake  or  an 
error  of  judgment  in  making  a  diagnosis,  in  pre- 
scribing treatment,  as  in  determining  upon  an  oper- 
ation, where  there  is  a  reasonable  doubt  as  to  the 
nature  of  the  physical  conditions  involved,  or  as  to 
what  should  have  been  done,  in  accordance  with 
recognized  authority  and  good  current  practice/' 


Civil  Eesponsibility  67 

It  is  important  to  remember  that  this  exception 
is  not  applicable  to  all  acts  which  a  physician  and 
surgeon  may  do  in  his  professional  capacity.  The 
point  of  difference  lies  here.  Let  us  again  quote 
from  Judge  Jaggard's  learned  opinion.  ' '  There  is 
often  a  fundamental  difference  in  malpractice 
cases  between  mere  errors  of  judgment  and  negli- 
gence in  previously  collecting  data  essential  to  a 
proper  conclusion  or  in  consequent  conduct  in  the 
subsequent  selection  and  use  of  instrumentalities 
with  which  the  medical  man  may  execute  his  judg- 
ment. In  some  matters,  medicine  is  a  science ;  in 
others,  an  art.  Generally  the  exception  governs 
cases  in  which  it  is  a  science;  the  rule,  cases  in 
which  it  is  an  art.  If,  for  example,  a  physician 
certifies  that  a  man  is  insane  without  having  made 
an  examination,  his  negligence  is  of  fact  and  not  all 
of  science.  But  a  medical  man  is  not  bound  to 
form  a  right  judgment  (as  to  sanity)  so  as  to  be 
liable  to  an  action  if  he  does  not  (Crompton,  J.,  in 
Hall  v.  Semple,  3  Fost.  and  F.,  337;  Williams  v. 
Le  Bar,  141  Pa.,  149 ;  21  AtL,  525). 

' '  When  the  physician  is  actually  operating,  he 
is  employing  surgery  as  an  art;  and  if,  for  exam- 
ple, he  uses  an  old  rusty  saw  (Young  v.  Fuller- 
ton,  reported  in  McClelland  on  Civil  Malpractice, 
p.  253),  or  if  he  operate  on  the  wrong  arm  (Sul- 
livan V.  McGraw,  118  Mich.,  39;  76  N.  W.,  149), 
or  sew  up  a  sponge  in  an  abdomen  he  has  opened 
(Gillette  v.  Tucker,  67  Ohio  St.,  106;  93  Am.  St. 
Bep.,  639 ;  65  N.  E.,  865),  his  wrong  concerns  phys- 


68  The  Doctoe  m  Court 

ical  facts,  and  has  fairly  been  held  to  be  governed 
by  ordinary  principles  of  negligence.  Where,  how- 
ever, due  diligence  and  skill  have  been  employed  in 
ascertaining  the  essential  prelimiaary  information 
for  an  opinion  whether  a  surgical  operation  should 
be  performed  or  not,  the  formation  of  the  judg- 
ment in  accordance  with  appropriate  scientific 
knowledge,  in  a  case  of  reasonable  doubt,  is  within 
the  exception.  One  reasonable  justification  for  this 
exception  in  many  cases  is  the  elementary  prin- 
ciple that,  when  a  man  acts  according  to  his  best 
judgment  in  an  emergency,  but  fails  to  act  ju- 
diciously, he  is  not  chargeable  with  negligence. 
The  act  or  omission,  if  faulty,  may  be  called  a  mis- 
take, but  not  carelessness.  (See  Brown  v.  French, 
104  Pa.,  604.)  Physicians,  in  the  nature  of  things, 
are  sought  for  and  must  act  in  emergencies  and, 
if  a  surgeon  waits  too  long  before  undertaking  a 
necessary  amputation,  he  must  be  held  to  have 
known  the  probable  consequences  of  such  delay, 
and  may  be  held  liable  for  the  resulting  damage 
(Du  Bois  V.  Decker,  130  N.  Y.,  325 ;  14  L.  E.  A., 
429;  27  Am.  St.  Kep.,  529;  29  N.  E.,  313;  Martin 
V.  Courtney,  75  Minn.,  255;  77  N.  W.,  813). 

'^Physicians  and  surgeons,"  still  following 
Judge  Jaggard's  words,  ''deal  with  progressive, 
inductive  science.  On  two  historic  occasions  the 
greatest  surgeons  in  our  country  met  in  conference 
to  decide  whether  or  not  they  should  operate  on 
the  person  of  a  President  of  the  United  States. 
Their  conclusion  was  the  final  human  judgment. 


Civil  Eesponsibility  69 

They  were  not  responsible  in  law,  either  human  or 
divine,  for  the  ultimate  decree  of  nature.  The 
same  tragedy  is  enacted  in  a  less  conspicuous  way 
every  day  in  every  part  of  the  country.  The  same 
principles  of  justice  apply.  Shall  it  be  held  that 
in  such  cases,  where  there  is  a  fundamental  differ- 
ence among  physicians  as  to  what  conclusion  their 
science  applied  to  knowable  facts  would  lead  to, 
then  what  they  with  their  knowledge,  training,  and 
experience  are  unable  to  decide,  and  what,  in  the 
nature  of  human  limitations  is  not  susceptible  of 
certain  determination,  shall  be  autocratically 
adjudged  by  twelve  men  in  a  box,  or  by  one  man 
on  the  bench,  or  by  a  larger  number  in  an  appel- 
late court,  none  of  whom  are  likely  to  have  the  fit- 
ness or  capacity  to  deal  with  more  than  the  ele- 
ments of  the  controversy  ?'* 

The  law  relating  to  the  disjpgsal  of  dead  bodies 
and  the  mutilation  thereof  is  a  subject  with  which 
every  practitioner  should  be  familiar.  Certain 
relatives  of  the  deceased  have  rights  and  privileges 
in  this  connection  which  cannot  be  interfered  with, 
and  any  unjustifiable  mutilation  of  the  corpse  will 
render  that  person  legally  responsible  to  the  rela- 
tives. Accordingly,  where  a  child  died  in  a  hos- 
pital and  an  unsanctioned  autopsy  was  performed, 
it  was  held  that  the  father  could  maintain  an  ac- 
tion against  the  doctor  who  mutilated  the  dead 
body  (Burney  v.  Children's  Hospital,  169  Mass., 
57;  see,  also,  Darcy  v.  Presbyterian  Hospital,  95 


70  The  Doctor  in  Couht 

N.  E.,  698) ;  and  where  a  husband  did  not  consent 
to  the  performance  of  an  autopsy  upon  the  body 
of  his  wife  he  recovered  damages  for  injury  to  his 
feelings  (Foley  v.  Phelps,  37  N.  Y.  Supp.,  471). 

A  curious  legal  point  has  been  brought  out  by 
this  class  of  cases ;  for  a  dead  body  is  not  regarded 
by  the  law  as  personal  property,  and  it  was  there- 
fore at  one  time  held  that,  this  being  the  fact,  no 
cause  of  action  would  lie  for  the  negligent  or  inten- 
tional mutilation  of  the  corpse  (Griffith  v.  Char- 
lotte, etc.,  E.  R.  Co.,  23  S.  C,  25).  This  was  true 
under  the  ecclesiastical  law,  as  a  body  was  deemed 
to  belong  to  the  church,  and  the  rule  that  there  can 
be  no  property  in  a  dead  body  holds  good  in  Eng- 
land (2  Bl.  Comm.,  429;  Wilhams  v.  Williams,  20 
Ch.  Div.,  659),  as  well  as  in  the  United  States 
(Hackett  v.  Same,  18  R.  I.,  155),  though  in  botli 
countries  a  corpse  is  regarded  as  quas'i-property 
and  the  courts  have  recognized  the  right  of  posses- 
sion by  the  relatives  of  the  body  together  with  the 
right  to  sue  for  wrongful  acts  against  the  body 
(Queen  v.  Fox,  2  Q.  B.,  24). 

Said  Mr.  Justice  Potter,  delivering  the  opinion 
of  the  court  in  Pierce  v.  Swan  Point  Cemetery  (10 
R.  I.,  227) :  ''That  there  is  no  right  of  property  in  a 
dead  body,  using  the  word  in  its  ordinary  sense, 
may  well  be  admitted,  yet  the  burial  of  the  dead  is 
a  subject  which  interests  the  feelings  of  mankind 
to  a  much  greater  degree  than  many  matters  of 
actual  property.  There  is  a  duty  imposed  by  the 
universal  feelings  of  mankind  to  be  discharged  by 


Civil  Responsibility  71 

some  one  toward  the  dead ;  a  duty,  and  we  may  also 
say  a  right,  to  protect  from  violation;  and  a  duty 
on  the  part  of  others  to  abstain  from  violation ;  it 
may  therefore  he  considered  as  a  sort  of  quasi- 
property,  and  it  would  be  discreditable  to  any  sys- 
tem of  law  not  to  provide  a  remedy  in  such  a  case. ' ' 

The  court  of  New  York  (Foley  v.  Phelps,  1 
App.  Div.,  551)  expresses  itself  in  this  manner: 
<  <  ijijjg  right  is  to  the  possession  of  the  corpse  in  the 
same  condition  it  was  when  death  supervened.  It 
is  the  right  to  what  remains  when  breath  leaves  the 
body. ' ' 

It  is  not  an  uncommon  thing  for  individuals  to 
will  or  sell  their  bodies  in  the  interests  of  science. 
While  the  courts  do  not  look  with  favor  upon  per- 
sons doing  this,  they  see  the  necessity  for  students 
and  members  of  the  profession  having  bodies  to 
dissect,  and  provision  has  been  made  therefor  in 
many  States  by  the  passage  of  so-called  ana,tomy 
acts.  Most  of  these  enactments  are  of  compara- 
tively recent  origin,  it  not  being  very  long  ago  that 
bodies  for  dissection  had  to  be  procured  in  a  sur- 
reptitious manner.  The  method  of  Stevenson's 
body-snatcher  was  often  resorted  to. 

In  England  a  person  has  no  right  to  dispose  of 
his  body,  though  in  this  country  he  has  some  au- 
thority as  to  its  disposition. 

Of  course,  where  the  dissection  is  done  by  sanc- 
tion of  law  or  with  the  consent  of  the  relatives  who 
have  a  right  to  the  body,  the  mutilation  is  justifiable 
and  the  physician  not  responsible.    Where  death  is 


72  The  Doctor  in  Couet 

sudden  or  under  suspicious  circumstances  and  the 
cause  not  ascertainable  witli  any  degree  of  cer- 
tainty without  an  autopsy,  a  post-mortem  examina- 
tion for  reasons  of  public  policy  becomes  lawful, 
regardless  of  whether  or  not  the  relatives  assent, 
and  the  physician  under  such  circumstances  would 
not  be  liable  for  making  his  investigation  in  a  sci- 
entific manner. 

The  relatives  from  whom  permission  must  be 
obtained  to  perform  an  autopsy  and  the  order  in 
which  tliey  may  take  the  dead  body  depends  upon 
the  nearness  of  the  relationship.  The  law  recog- 
nizes the  right  of  the  surviving  husband  or  wife  as 
paramount,  then  the  children,  next  the  parents  of 
the  deceased,  and  so  on  to  the  next  of  kin  following 
the  rules  governing  the  descent  of  personalty.  The 
nearer  the  relationship,  the  stronger  the  right 
(Larson  v.  Chase,  47  Minn.,  307). 

It  has  been  stated  in  various  places  in  this  and 
preceding  chapters  that  certain  questions  arising  in 
cases  of  negligence  and  malpractice  are  matters  of 
fact  for  the  jury  to  decide,  but  such  questions  may 
be  said  to  be  mixed  questions  of  law  and  fact.  For 
it  is  incumbent  on  the  court  in  every  case  to  state 
the  law  of  the  subject-matter  in  controversy.  The 
jury  must  be  guided  by  these  instractions  in  reach- 
ing a  conclusion. 

Thus  in  a  case  in  which  the  issue  is  whether  or 
not  ordinary  care,  skill,  and  diligence  was  exer- 
cised by  the  physician,  the  court  must  tell  the  jury 


Civil  Eesponsibility  73 

what  constitutes  these  elements  as  the  authorities 
define  them  (Tefft  v.  Wilcox,  6  Kan.,  46).  If  the 
court  does  not  pronounce  the  law  correctly,  the  ag- 
grieved party  may  usually  secure  a  new  trial.  In 
the  words  of  Judge  Manly,  of  the  supreme  hench 
of  North  Carolina  (Woodward  v.  Hancock,  52 
N.  C,  384),  "What  amounts  to  reasonable  skill  and 
care  belongs  to  a  class  of  questions  which  are  said 
to  be  compounded  of  law  and  fact.  In  this  class 
stand  reasonable  time,  due  diligence,  legal  provoca- 
tion, probable  cause,  and  the  like.  A  division  of 
the  question  in  such  cases  between  the  court  and 
jury  is  now  considered  settled;  and,  therefore, 
where  there  is  a  state  of  facts  concerned  or  proved, 
it  becomes  the  duty  of  the  court  to  draw  the  con- 
clusion as  matter  of  law. ' ' 

The  law  gives  the  benefit  of  doubt  in  cases  of 
negligence  and  malpractice  to  the  defending  phy- 
sician, and  many  legal  presumptions  which  have 
been  spoken  of  are  raised  in  his  favor.  The  law 
will  presume,  until  contrary  proof  has  been  ad- 
duced by  the  patient,  that  care  and  skill  were  used 
by  the  physician  in  his  treatment,  and  the  burden 
of  proof  is  upon  the  plaintiff  to  show  that  the  phy- 
sician was  negligent  or  unskilful.  This  does  not 
hold  true  in  cases  where  the  acts  or  omissions  to 
act  are  of  such  a  nature  that  negligence  can  be  pre- 
sumed from  proof  of  the  results. 

Thus  in  a  case  where  a  physician  did  not  dis- 
cover a  very  severe  rupture  of  the  perineum  after 
repeated  examinations  with  the  express  purpose  of 


74  The  Doctor  in  Court 

sucli  a  discovery,  his  negligence  was  held  to  be  ac- 
tionable (Lewis  V.  Dwinell,  84  Me.,  497).  Gen- 
erally, however,  there  is  no  presumption  of  a  want 
of  knowledge,  skill,  and  care,  where  the  treatment 
is  unsuccessful  and  results  unsatisfactory  (Doyle 
V.  Owen,  150  111.  App.,  415;  Pettigrew  v.  Lewis, 
46  Kan.,  78;  Bonnet  v.  Foote,  47  Colo.,  282),  unless 
the  injury  is  so  manifest  as  to  leave  no  doubt  of 
the  negligence  of  the  physician.  Under  such  cir- 
cumstances affirmative  evidence  by  the  plaintiff  is 
dispensed  with.  In  a  case  in  which  a  surgical  oper- 
ation was  performed  upon  the  patient's  eye  for 
strabismus,  prior  to  which  the  patient's  eyesight 
had  been  good,  but  afterward  was  not  so  strong,  the 
court  decided  there  could  be  no  presumption  of  mal- 
practice from  the  condition  of  the  patient's  eyes 
subsequent  to  the  operation  (Pettigrew  v.  Lewis, 
46  Kan.,  78). 

Where  a  physician  is  accused  of  negligence 
alone*  evidence  to  show  his  skill  and  competency 
is  not  admissible  in  evidence  for  the  reason  that 
such  a  question  is  not  before  the  court  for  determi- 
nation (Baker  v.  Hancock,  29  Ind.  App.,  456). 

With  regard  to  the  weight  of  the  evidence  in 
tort  cases,  within  which  class,  as  we  have  seen,  come 
civil  suits  for  negligence  and  malpractice,  the  rule 
is  different  from  that  in  criminal  matters.  In  the 
latter  it  is  necessary,  in  order  to  secure  the  convic- 
tion of  the  defendant,  to  show  beyond  a  reasonable 
doubt  or  to  a  moral  certainty  the  truth  of  the  crime 


iCiviL  Responsibility  75 

charged.  This  high  standard  does  not  apply  in 
civil  cases.  It  is  only  necessary  in  such  matters  for 
the  plaintiff  to  demonstrate  by  a  preponderance  or 
superior  weight  of  evidence  that  his  contentions 
are  true. 

Like  the  double-jeopardy  plea  in  criminal  cases, 
there  is  an  analogous  rule  in  civil  matters  that  a 
person  can  only  recover  damages  once  for  one  and 
the  same  cause  of  action ;  and  this  applies  to  mal- 
practice cases  where  a  judgment  is  conclusive  for 
all  injuries  direct  or  indirect  growing  out  of  the 
unscientific  or  negligent  conduct  of  the  physician 
for  which  suit  was  brought  and  judgment  secured. 
The  question  of  how  far  an  action  for  compensation 
decided  in  favor  of  the  physician  will  act  as  a  bar  to 
a  suit  for  malpractice  based  upon  the  neglect  or 
carelessness  alleged  to  have  occurred  at  the  time  of 
the  services  for  which  the  physician  sues  for  his 
fee,  is  taken  up  in  the  chapter  on  Remuneration. 

The  decisions  in  malpractice  cases  are  by  no 
means  uniform,  and  from  those  that  have  been 
here  given  one  is  led  to  the  conclusion  that  the  way 
of  the  physician  is  not  without  its  pitfalls  and  ob- 
structions. He  *4s  liable  to  have  his  acts  mis- 
judged, his  motives  suspected,  and  the  truth  col- 
ored or  distorted,  even  where  there  are  no  dis- 
honest intentions  on  the  part  of  his  accusers" 
(Upton,  Judge,  in  Williams  v.  Poppleton,  3  Ore., 
139).    The  testimony  adduced  in  malpractice  cases 


76  The  Doctor  in  Court 

must  necessarily  be  that  of  the  family,  the  friends 
of  the  patient,  or  the  patient  himself,  and  therefore 
such  testimony  is  generally  colored  and  biased  by 
reason  of  an  interest  and  partisanship  not  un- 
natural. The  physician  may  himself  be  the  only 
witness  for  his  own  defence. 

The  hypothetical  questions  to  the  experts  for 
the  plaintiff  must  necessarily  be  founded  on  the  un- 
reliable and  unsatisfactory  evidence  of  the  plain-, 
tiff's  prejudiced  witnesses.  The  court  of  Minne- 
sota, after  noting  these  things,  said:  ''He  is  con- 
fronted by  other  uncertainties  in  testimony  greater 
than  those  of  the  human  constitution,  however  fear- 
fully and  wonderfully  we  may  be  made  or  act,  and 
greater  than  those  of  physical  science,  however 
elusive  it  may  be.  He  is  faced  by  the  eccentricities 
of  medical  experts.  We  have  no  inclination  to 
share  in  the  prevalent  and  intemperate  denuncia- 
tion of  their  unreliability  and  veniality.  But  if 
every  verdict  mulcting  a  reputable  physician  in 
damages  must  be  sustained  if  any  of  his  profes- 
sional brethren  can  be  induced  to  swear  that,  as- 
suming the  testimony  of  the  family  and  friends  of 
the  patient  to  be  true,  the  physician  has  made  a 
mistake  of  judgment,  or  has  been  guilty  of  unsci- 
entific practice,  then  the  profession  would  be  one 
which  '  unmerciful  disaster  follows  fast  and  follows 
faster.'  "  (Staloch  v.  Holm,  100  Minn.,  276;  111 
N.  ^Y.,  264;  9  L.  R.  A.  (N.  S.),  712.  For  further 
authorities  upon  the  Civil  Eesponsibilit;;?^  of  ih^ 


CivrL  Responsibility  77 

Profession  see  Vol.  39,  American  Digest  (Century- 
Edition),  title,  ''Physicians  and  Surgeons,"  §§  31- 
48;  Vol.  22,  American  and  English  Encyclopaedia 
of  Law,  pp.  798-809;  Vol.  30,  Cyclopedia  of  Law 
and  Procedure,  pp.  1574-1592.) 


CHAPTER   IV 

KEMUNEEATION 

In  the  acropolis  mound  in  Susa  in  ancient  Elam 
a  code  of  laws  was  unearthed  in  1902,  which  is  the 
oldest  known  code  extant,  being  that  of  Hamurabi, 
King  of  Babylon,  who  reigned  2,250  years  before 
Christ.  Many  sections  of  this  code  relate  to  phy- 
sicians and  surgeons,  showing  that  those  who  fol- 
lowed the  profession  in  the  time  of  Abraham  were 
men  of  dignity  and  standing  in  the  community.  It 
is  interesting  to  note  that  the  majority  of  these  pro- 
visions deal  with  the  compensation  which  the  phy- 
sician and  surgeon  was  to  receive  for  his  services. 
These  sections  of  the  code  follow : 

206.  **If  a  man  strike  another  man  in  a  quarrel 
and  wound  him  he  shall  swear :  '  I  struck  him  with- 
out intent, '  and  he  shall  be  responsible  for  the  phy- 
sician." 

215.  "If  a  physician  operate  on  a  man  for  a 
severe  wound  (or  make  a  severe  wound  upon  a 
man)  with  a  bronze  lancet  and  save  the  man's  life ; 
or  if  he  open  an  abscess  (in  the  eye)  of  a  man  with 
a  bronze  lancet  and  save  that  man's  eye,  he  shall 
receive  ten  shekels  of  silver  (as  his  fee)." 

78 


Remuneration  79 

216.  ''If  lie  be  a  freeman,  lie  shall  receive  five 
shekels  of  silver." 

217.  *'If  it  be  a  man's  slave,  the  owner  of  the 
slave  shall  give  two  shekels  of  silver  to  the  phy- 
sician. ' ' 

221.  ''If  a  physician  set  a  broken  bone  for  a 
man  or  cure  his  diseased  bowels,  the  patient  shall 
give  five  shekels  of  silver  to  the  physician. ' ' 

222.  "If  he  be  a  freeman,  he  shall  give  three 
shekels  of  silver." 

223.  "If  it  be  a  man's  slave,  the  owner  of  the 
slave  shall  give  two  shekels  of  silver  to  the  phy- 
sician." (Code  of  Hamnrabi,  King  of  Babylon, 
by  Prof.  Eobert  F.  Harper.) 

Before  the  passage  of  the  Statute  of  21  and  22 
Victoria,  Chapter  90,  Section  31,  the  "Medical 
Act"  so  called  (passed  in  1858),  a  physician  in 
England  could  not  maintain  an  action  under  the 
common  law  for  his  fees  (Peck  v.  Martin,  17  Ind., 
115;  Chorley  v.  Bolcot,  4  T.  E.,  317),  except  in 
those  cases  where  there  was  an  express  contract. 
They  were  presumed  to  work  for  an  honorary  re- 
ward and  not  for  remuneration.  The  reason  for 
this  was  because  in  early  times  a  great  many  monks 
acted  as  physicians  and  they  could  not  recover  their 
fees,  for  they  were  incapable  of  possessing  any 
property  or  bringing  an  action  in  court  (Willcock 
on  Medical  Law,  112).  They  were,  in  the  eyes  of 
the  law,  civiliter  mortui. 

But  this  custom  did  not  prevail  among  surgeons 
who  were  allowed  to  recover  for  their  services.    In 


80  The  Doctor  in  Court 

Chorley  v.  Bolcot  (4  T.  K,  317),  which  was  an  ac- 
tion for  compensation,  Lord  Chief  Justice  Kenyon 
said:  **I  remember  a  learned  controversy  some 
years  ago  as  to  what  description  was  intended  by 
the  Medici  at  Rome,  and  it  seemed  to  have  been 
clearly  established  by  Dr.  Mead,  that  by  those  were 
not  meant  physicians,  but  an  inferior  degree 
amongst  the  professors  of  that  art,  such  as  answer 
rather  to  the  description  of  surgeons  amongst  us; 
but  at  all  events  it  has  been  understood  in  this 
country  that  the  fees  of  a  physician  are  honorary, 
and  not  demandable  of  right;  and  it  is  much  more 
for  the  credit  and  rank  of  that  honorable  body,  and 
perhaps  for  their  benefit  also,  that  they  should  be 
so  considered.  It  never  was  yet  heard  of  that  it 
was  necessary  to  take  a  receipt  upon  such  an  occa- 
sion; and  I  much  doubt  whether  they  themselves 
would  not  altogether  claini  such  a  right  as  would 
place  them  upon  a  less  respectable  footing  in  so- 
ciety than  that  which  they  at  present  hold. '  * 

In  the  United  States  this  rule  that  the  render- 
ing of  services  when  requested  raises  no  implied 
promise  to  pay  therefor  has  never  obtained  and 
physicians  have  been  allowed  to  sue  for  remunera- 
tion (Vilas  V.  Downer,  21  Vt.,  419) ;  in  fact,  the- 
law  in  this  country  implies  a  promise  to  compen- 
sate when  a  physician  treats  a  patient  (Peck  v. 
Hutchinson,  88  Iowa,  320 ;  Crane  v.  Baudouine,  65 
Barb.  (N.  Y.),  261;  Green  v.Higenbotam,  3  K  J. 
L.  J.,  60).  But  there  are  nevertheless  certain  con- 
ditions or  qualifications  with  which  the  physician 


Remtjneeation  81 

and  surgeon  must  comply,  or  his  failure  may  Tdc  suc- 
cessfully pleaded  in  bar  to  an  action  for  compensa- 
tion. In  many  States  statutes  have  been  passed 
expressly  prohibiting  one  who  has  not  fully  com- 
plied with  the  laws  regulating  the  practice  of  medi- 
cine and  surgery  from  recovering  his  fee  for  serv^- 
ices,  and  it  has  also  been  held  by  the  courts  that  an 
unauthorized  practitioner  cannot  recover  remunera- 
tion (Murray  v.  "Williams,  121  Ga.,  63 ;  Orr  v.  Meek, 
111  Ind.,  40).  There  is,  however,  in  a  suit  for  com- 
pensation a  presumption  that  the  physician  is  duly 
licensed  (Chicago  v.  Wood,  24  111.  App.,  42;  Mc- 
Pherson  v.  Cheadell,  24  Wend.  (N.  Y.),  15). 

In  an  action  for  compensation  the  physician 
does  not  have  to  show  that  his  treatment  cured  or 
benefited  the  patient  (Cotnam  v.  Wisdom,  83  Ark., 
601;  12  L.  R.  A.,  1089).  The  court  of  Wisconsin 
commenting  on  this  said:  ''That  is  not  at  all  the 
test.  So  that  a  surgical  operation  be  conceived  and 
performed  with  due  skill  and  care,  the  price  to  be 
paid  therefor  does  not  depend  on  the  result.  The 
event  so  generally  lies  with  the  forces  of  nature  that 
all  intelligent  men  know  and  understand  that  the 
surgeon  is  not  responsible  therefor.  In  the  absence 
of  express  agreement,  the  surgeon  who  brings  to 
such  services  due  skill  and  care  earns  the  reason- 
able and  customary  price  therefor,  whether  the  out- 
come be  beneficial  to  the  patient  or  the  reverse" 
(Ladd  V.  Witte,  116  Wis.,  35). 

So  if  a  physician  uses  due  care,  yet  mistakes 
the  nature  of  the  complaint  from  which  the  patient 


82  The  Doctor  in  Court 

suffers,  lie  can  notwithstanding  recover  compensa- 
tion (Ely  V.  Wilbur,  49  N.  J.  L.,  685) ;  but,  on  the 
other  hand,  if  he  fails  to  use  ordinary  skill  he  will 
be  precluded  from  getting  anything  for  his  services 
(Logan  V.  Field,  192  Mo.,  54;  Howell  v.  Goodrich, 
69  111.,  556),  though  it  has  been  held  that  if  a  phy- 
sician is  guilty  of  negligence  or  malpractice,  he  can, 
nevertheless,  recover  compensation  less  the  amount 
of  damage  caused  by  his  conduct  (Whitesell  v. 
Hill,  101  Iowa,  629;  37  L.  R.  A.,  830). 

Where  a  physician,  upon  undertaking  the  treat- 
ment of  a  case,  stipulated  with  his  patient  that  if 
he  did  not  cure  him  he  was  to  receive  no  pay,  it 
was  held  that  he  could  not  recover  either  for  his 
treatment  or  medicines  unless  he  could  show  the 
contract,  as  far  as  he  was  concerned,  had  been  per- 
formed according  to  its  terms  and  the  patient  cured 
(Smith  V.  Hyde,  19  Vt.,  54). 

The  case  of  McKleroy  v.  Sewell  (73  Ga.,  657) 
holds  that  if  a  physician  is  in  such  a  state  of  alco- 
holic intoxication  as  to  prevent  proper  treatment, 
this  fact  will  be  a  good  defence  to  an  action  for 
compensation  provided  the  plaintiff  did  not  assume 
the  risk,  that  is,  know  of  the  fact  of  intoxication 
or  a  tendency  thereto  when  he  employed  the  phy- 
sician. 

From  the  excerpt  of  the  code  of  Hamurabi  given 
at  the  beginning  of  this  chapter  it  is  patent  that  the 
physician  practising  in  those  times  was  permitted 
to  charge  the  rich  man  more  for  his  services  than 
he  did  the  poor  man.    During  Henry  VI  *s  reign 


Remuneration-    ,  83 

the  physicians  in  England  had  rules  regarding 
compensation.  The  poor  man  was  treated  free,  and 
"in  no  case  was  the  physician  to  charge  excessive 
fees,  but  to  study  to  fit  his  fee  to  the  patient's 
purse,  and  measurably  after  the  deserving  of  his 
labor." 

In  the  14th  century  a  specialist  in  the  treat- 
ment of  fistula,  Dr.  John  Ardem,  if  he  had  a 
*' worthy  man  and  great"  for  a  patient  and  cured 
him,  charged  100  marks  *'with  robez  and  feez  of 
an  hundred  shillyns  terme  of  lyfe,  by  year."  He 
would  take  less  "of  lesse  men  Avithout  feez." 
"Never  in  alle  my  lyfe  toke  I  lesse  than  an  hun- 
dred shillyns  for  cure  of  that  sickness. "  It  is  said 
of  him  that  after  bargaining  with  a  patient  regard- 
ing the  fee  he  was  to  receive,  he  took  security  for 
the  payment  (Philip  Hale  in  the  Boston  Herald). 

How  much  regard  to-day  can  be  had  for  the  pa- 
tient's purse  by  the  members  of  the  medical  profes- 
sion is  a  mooted  question.  On  the  point  of 
whether  or  not  it  is  allowable  for  the  physician  to 
graduate  his  professional  charges  in  accordance 
with  the  patient's  ability  to  pay  the  decisions  are 
muddy,  some  holding  the  financial  condition  of  the 
patient  to  be  a  proper  subject  for  inquiry  in  a  suit 
by  the  physician  for  compensation  (Succession  of 
Haley,  50  La.  Ann.,  840),  while  others  hold  the 
contrary  view  (Robinson  v.  Campbell,  47  la.,  625). 
For  as  was  said  by  the  court  in  Robinson  v.  Camp- 
bell (47  Iowa,  625),  "There  is  no  more  reason  why 
this  charge  should  be  enhanced  on  account  of  the 


84  The  Doctor  in  Coubt 

ability  of  the  defendants  to  pay  than  that  the  mer- 
chant should  charge  them  more  for  a  yard  of  cloth, 
or  the  druggist  for  filling  a  prescription,  or  a  la- 
borer for  a  day 's  work. ' '  The  Alabama  court,  hold- 
ing this  same  view  (Morrissett  v.  Wood,  123  Ala., 
384),  said:  *'The  cure  or  amelioration  of  disease  is 
as  important  to  a  poor  man  as  it  is  to  a  rich  one, 
and,  prima  facie,  at  least,  the  services  rendered  the 
one  are  of  the  same  value  as  the  services  rendered 
to  the  other." 

Notwithstanding  this,  it  seems  in  those  cases 
where  there  is  evidence  of  a  custom  long  established 
among  the  members  of  the  profession  that  their 
services  are  rendered  with  a  view  to  charging  their 
patients  according  to  their  circumstances  and  po- 
sition in  life,  the  courts  consider  that  the  services 
of  physicians  are  accepted  in  contemplation  of  such 
custom,  and  fees  so  graduated  may  be  recovered 
(Cotnam  v.  Wisdom,  83  Ark.,  601;  Morrissett  v. 
Wood,  123  Ala.,  384) .  So  in  proving  the  time  value 
of  his  services,  evidence  of  the  customary  and 
usual  charges  in  the  neighborhood  or  locality  in 
which  the  physician  practises  is  admissible  (Jonas 
V.  King,  81  Ala.,  285),  and  that  his  rates  were  well 
known  by  persons  in  that  locality,  including  the  de- 
fendant (Paige  V.  Morgan,  28  Vt.,  565).  Such  evi- 
dence is  admissible  on  the  physician's  behalf  to 
show  the  amount  the  defendant  impliedly  agreed 
to  pay  (Paige  v.  Morgan,  28  Vi,  565). 

Yet  where  it  appears  that  the  custom  of  charg- 
ing the  patient  with  an  eye  to  his  financial  standing 


Remuneration  85 

is  in  vogue,  but  the  patient  receives  the  benefit  of 
the  physician's  attention  when  unconscious  from 
an  accidental  injury,  or  under  any  circumstances 
where  the  patient's  condition  is  such  that  he  cannot 
himself  request  the  services  of  a  physician,  then  a 
promise  is  implied  by  law  that  the  person  so  at- 
tended will  pay  only  reasonable  compensation  for 
such  services  (Sceva  v.  True,  53  N.  H.,  627;  Cot- 
nam  v.  Wisdom,  83  Ark.,  601). 

Suits  for  compensation  often  grow  out  of  a  dis- 
pute over  the  amount  claimed  for  services.  Re- 
sistance may  be  offered  on  the  ground  that  the 
services  were  intended  to  be  and  were  gratuitous. 
In  a  Mississippi  case  (Hardenstein  v.  Brien,  50 
S.  R.,  979)  a  physician  sued  the  administrator  of 
the  estate  of  a  Mrs.  Harper,  deceased.  One  wit- 
ness testified  that  Mrs.  Harper  said  that  she  had 
paid  the  jjhysician  nothing  for  services  for  about 
sixteen  or  eighteen  years  previously,  but  that  in  the 
last  illness,  running  over  many  months,  he  had  come 
to  see  her  so  often  by  day  and  night,  any  hour  in 
the  night  he  was  sent  for,  that  he  must  be  paid  for 
this ;  that  the  obligation  was  too  great  to  be  passed 
over.  Another  mtness  testified  that  one  day  she 
said  to  him  that  she  wanted  to  i^ay  him  something 
for  his  services,  as  he  had  been  good  and  kind  to 
her,  and  said  to  him:  ''Make  out  a  bill  for  me, 
Doctor,"  to  which  he  answered:  "Oh,  no,  Mrs. 
Harper;  I  cannot  make  out  a  bill;  I  don't  want  to, 
because  you  are  the  widow  of  a  physician,  and.  I 
won't  think  of  doing  such  a  thing."    Referring  to 


86  The  Doctor  in  Court 

it  again,  she  said :  ''Have  you  made  out  tliat  bill!" 
and  he  said:  ''No;  I  have  not  made  out  any  bill." 
Then  she  said :  "I  want  the  thing  settled  right  now ; 
have  you  made  out  any  bill?"  To  that  he  an- 
swered :  "  No ;  I  told  you  I  was  not  going  to  make 
out  any  bill, ' '  and  she  said :  "  I  want  to  give  you 
something;  will  a  thousand  dollars  do  I"  His  re- 
ply was :  "I  would  not  think  of  asking  that  much." 
Again  she  said:  "How  will  $500  do?"  and  he  said: 
"All  right,  I  will  take  that."  The  court  held  this 
constituted  a  distinct  contract,  supported  by  a  val- 
uable consideration,  viz.,  the  services  in  the  last 
illness,  and  that  the  physician  should  have  been 
permitted  to  recover  the  $500  on  the  testimony. 

With  regard  to  this  matter  of  gratuitous  ser- 
vices, the  court  of  North  Carolina  (Prince  v.  Mc- 
Rae,  84  N.  C,  674)  has  this  to  say:  "Whether  the 
plaintiff's  services  shall  be  deemed  a  gratuity  or 
constitute  a  claim  for  compensation,  must  be  deter- 
mined by  the  common  understanding  of  both  par- 
ties. If  they  were  intended  to  be  and  were  ac- 
cepted as  a  gift  or  act  of  benevolence,  they  cannot 
at  the  election  of  the  plaintiff  create  a  legal  obliga- 
tion to  pay." 

Testimony  from  an  expert  as  to  the  value  of 
services  is  admissible  in  evidence  (McKnight  v. 
Detroit,  &c.,  R.  Co.,  135  Mich.,  307),  as  there  is  no 
presumption  of  law  with  regard  to  such  value 
(Wood  V.  Barker,  49  Mich.,  295;  13  N.  W.,  597). 
It  is  manifest  that  a  jury  would  have  difficulty  in 
ascertaining  their  value  without  evidence  from  per- 


Remuneeation  87 

sons  knowing  something  about  the  matter,  and  it 
seems  that  a  jury  has  no  right  in  a  case  where  the 
evidence  as  to  the  appropriateness  of  the  physi- 
cian's remuneration  is  not  disputed  to  reduce  it 
upon  their  unsupported  belief  that  the  treatment 
should  have  been  different  (Wood  v.  Barker,  49 
Mich.,  295 ;  13  K  W.,  597),  The  value  to  be  proved 
is  the  ordinary  and  reasonable  figure  for  services  of 
that  nature  (Styles  v.  Tyler,  64  Conn.,  432).  The 
criterion  of  worth  is  not  the  physical  benefit  the  pa- 
tient receives  (Cotnam  v.  Wisdom,  83  Ark.,  601). 
A  contract  with  a  physician  to  pay  from  $200  to 
$400  for  an  operation  was  held  to  be  valid  and  bind 
the  parties  to  the  contract  for  $200,  and  upon  proof 
of  the  value  of  the  services  to  the  full  extent  of  the 
contract— $400. 

A  great  number  of  cases  upon  this  subject  of 
compensation  involve  the  question  of  liability  of 
persons  other  than  the  patient  for  the  physician's 
services.  Each  case  must  be  judged  on  its  own 
facts  just  as  any  contract  case.  In  order  to  hold 
a  third  person  liable  for  medical  attendance  to 
another  an  express  or  implied  promise  to  pay  there- 
for must  be  shown  by  the  physician  (Crane  v. 
Baudouine,  55  N.  Y.,  256).  In  other  words  in  those 
cases  where  one  is  under  no  legal  obligation  to 
pay  for  medical  services  rendered  another  person, 
the  physician  cannot  hold  him  responsible  where 
there  is  no  promise  to  pay  relied  upon  by  the  phy^ 
sician  (Dorion  v.  Jacobson,  113111.  App.,  564). 
Most  of  these  cases  have  grown  out  of  a  dispute  as 


88  The  Doctor  in  Court 

to  whether  or  not  there  has  heen  an  implied  em- 
ployment. The  antecedent  acts  of  the  parties  de- 
termines their  obligations.  A  certain  set  of  cir- 
cumstances will  give  rise  to  certain  liabilities  if 
unaccompanied  by  express  stipulations  explaining 
such  circumstances,  and  the  law,  if  it  establishes 
a  contract  by  implication  from  these  circumstances, 
then  proceeds  as  if  the  persons  had  contracted  by 
formal  words.  The  whole  matter  is  largely  one  of 
construction  and  interpretation  of  contracts. 

Let  us  take  a  few  illustrative  cases.  It  was  de- 
cided that  where  a  steamboat  captain  brought  a 
patient  to  a  physician's  office,  asked  the  physician 
to  treat  the  patient,  and  then  left,  that  the  physician 
could  recover  his  fee  from  the  captain  (Berry  v. 
Pusey,  80  Ky.,  166) ;  and  where  a  person  tele- 
graphed to  an  infirmary,  *'I  have  just  learned  of 
L's  accident.  Show  him  every  consideration  and  I 
will  pay  expenses,"  the  court  held  that  the  sender 
of  the  telegram  would  have  to  pay,  inasmuch  as  an 
outside  physician  had  been  secured  pursuant  to  the 
request  in  the  telegram  (White  v.  Mastin,  38  Ala., 
147). 

But  where  a  hotel  keeper  at  a  resort  telegraphed 
a  friend,  ''There  are  many  cases  of  yellow  fever 
at  the  Well,  send  out  a  physician,  without  fail,  this 
evening,"  and  the  friend  showed  the  telegram  to 
a  physician  asking  him  to  go,  which  he  did,  it  was 
held  that  this  telegram  did  not  constitute  a  promise 
to  pay  the  physician  and  he  could  not  therefore  re- 


Eemuneeation  89 

cover  for  Ms  services  from  the  sender  of  the  mes- 
sage (Williams  v.  Brickell,  37  Miss.,  682). 

In  a  Colorado  case  a  young  man  of  25  was  quite 
seriously  injured  while  at  a  distance  from  his  fam- 
ily. He  was  without  means  and  was  cared  for  at 
a  hospital  operated  by  the  plaintiff,  a  physician. 
The  defendant,  a  sister  of  injured,  wrote  the  phy- 
sician concerning  her  brother's  condition  and  re- 
quested that  she  be  kept  infonned  just  how  he 
was  doing.  She  said :  ' '  And  we  will  gladly  pay  all 
expenses.  .  .  .  All  of  his  expenses  will  be  paid 
later  on  and  we  want  him  to  have  everything  to 
make  him  more  comfortable, ' '  etc.  The  court  held 
that  this  was  an  original  promise  on  the  part  of  the 
sister  to  pay  for  the  services  from  the  date  of  the 
letter  on,  and  her  authorization  of  such  sen^ices 
rendered  her  liable  (Hall  v.  Allen,  104  Pac.  Eep., 
489). 

Naturally  a  third  person  could  not  be  held  liable 
for  medical  expenses  when  acting  for  another 
merely  as  a  messenger  or  in  an  emergency  (Mad- 
den V.  Blain,  66  Ga.,  49).  The  court  of  Georgia  put 
the  stamp  of  approval  upon  this  rule  of  law  in  the 
following  words:  ''When  one  summoning  a  phy- 
sician to  care  for  another,  rendered  by  sudden  ill- 
ness unable  to  act  for  himself,  and  to  whom  he 
stands  in  no  relationship  which  creates  no  obliga- 
tion to  furnish  necessary  medical  care,  and  no  ex- 
press undertaking  is  entered  into,  then  from  the 
mere  summoning  of  the  physician  and  requesting 


90  The  Doctor  in  Court 

him  to  care  for  the  person  who  is  ill,  the  law  does 
not  presume  an  implied  promise  by  the  one  so  act- 
ing to  pay  for  the  services  of  the  physician  sum- 
moned" (Norton  v.  Kourke,  130  Ga.,  600;  61  S. 
E.,  478;  18  L.  E.  A.  (N.  S.),  173;  see,  also,  Jes- 
serich  v.  Walruff,  51  Mo.  App.,  270;  Starrett  v. 
Miley,  79  111  App.,  658;  Smith  v.  Watson,  14  Vt., 
332). 

A  rule  the  reverse  of  this  would  obviously  be 
unjust.  For  as  Judge  Thompson  said  in  Messen- 
bach  V.  Southern  Cooperage  Co.  (45  Mo.  App., 
232),  "When  a  person  is  dangerously  wounded  and 
perhaps  unable  to  speak  for  himself,  or  suffering  so 
much  that  he  does  not  know  how  to  do  it,  any  per- 
son will  run  to  the  nearest  surgeon  in  the  per- 
formance of  an  ordinary  office  of  humanity.  If 
it  were  the  law  that  the  person  so  going  for  the 
surgeon  thereby  undertakes  to  become  personally 
responsible  for  the  surgeon's  bill,  and  especially 
for  the  surgeon's  bill  through  the  long  subsequent 
course  of  treatment,  many  would  hesitate  to  per- 
form this  office,  and  in  the  meantime  the  sufferer 
might  die  for  the  want  of  the  necessary  immediate 
attention.  Nor  is  there  a  common  and  fair  under- 
standing that  the  person  making  the  request,  or 
ordering  it  to  be  made  in  behalf  of  the  sufferer, 
under  the  circumstances,  assumes  responsibility  for 
the  surgeon 's  bill. ' ' 

A  legal  obligation  may,  however,  exist  between 
the  patient  and  some  third  person  whereby  the 


Bemuneration  91 

latter  becomes  responsible  for  the  medical  expenses 
of  the  former.  Thus  a  father  is  chargeable  with  the 
care,  maintenance,  and  support  of  his  minor  child 
(Rowe  V.  Eaper,  23  Ind.  App.,  27),  which  includes 
necessary  medical  attendance  (Best  v.  McAuslan, 
27  R.  I.,  107),  though  in  Holmes  v.  McKim  (109 
la.,  245;  80  N.  W.,  329)  it  was  said:  ''One  is  not 
under  any  implied  obligation  to  pay  for  the  services 
of  a  physician  called  to  attend  a  minor  living  with 
his  family  and  supported  by  him,  but  not  otherwise 
related  to  him,  though  he  acquiesced  in  the  at- 
tendance and  had  on  a  former  occasion  paid  the 
same  doctor  for  attending  the  same  minor,  the  phy- 
sician knowing,  however,  the  true  relations  of  the 
defendant  and  said  child." 

It  has  also  been  held  that  a  man  is  not  bound 
to  pay  a  physician  for  attending  his  mother-in-law 
simply  because  he  was  present  when  the  services 
were  performed  (Madden  v.  Blain,  66  Ga.,  49).  A 
request  by  a  father  to  a  physician  to  visit  his  son 
who  was  of  age,  but  ill  at  the  father's  house,  raised 
no  implied  promise  that  the  father  would  pay  for 
such  attendance  (Boyd  v.  Sappington,  4  Watts 
(Pa.),  247). 

If  the  relationship  is  not  sufficient  in  itself  to 
establish  responsibility  of  the  third  party,  the  facts 
of  the  case  must  show  an  actual  employment  by 
the  third  person  (Keams  v.  Caldwell,  7  Ky.,  449). 
Thus  where  an  employer  merely  summoned  a  doc- 
tor to  attend  jin  employee  suddenly  taken  ill  while 


92  The  Doctoh  in  Court 

in  the  line  of  his  employment,  the  employee  being 
unable  to  act  for  himself,  the  employer  would  not 
be  liable  for  the  physician's  services  if  there  was 
no  express  stipulation  between  the  employer  and 
employee  that  he  should  furnish  such  care  (Norton 
V.  Eourke,  130  Ga.,  600;  61  S.  E.,  478;  18  L.  R. 
A.  (N.  S.),  173).  Where  a  woman  wounded  and 
bleeding  rushed  into  a  man's  house  to  whom  she 
was  a  stranger  and  fell  unconscious  there,  and  the 
man  called  in  a  physician  and  told  him  to  care  for 
her,  it  was  held  that  in  the  absence  of  an  express 
promise  by  the  man  to  pay  for  the  services  of  the 
physician  he  was  not  liable  therefor,  even  though 
it  appeared  that  she  had  been  carried  to  a  room  in 
the  house. 

We  have  seen  in  the  chapter  on  the  civil  re- 
sponsibility of  the  profession  that  a  patient  can 
recover  damages  against  a  physician  only  once  for 
the  same  act  of  malpractice.  In  other  words,  where 
the  question  of  negligent  or  unskilful  conduct  of  the 
physician  has  been  raised  between  the  parties,  it 
cannot  again  be  made  the  subject  of  legal  contro- 
versy between  them.  As  has  been  observed,  mal- 
practice is  generally  a  good  defence  to  an  action  for 
compensation,  and  it  is  therefore  only  natural  that 
the  law  should  say  when  such  a  defence  is  inter- 
posed that  the  question  of  malpractice  has  been  in 
issue  and  cannot  again  be  brought  before  the  court 
to  be  decided.  So  where  a  physician  brings  suit  for 
the  value  of  his  services  and  upon  trial  the  case 


Remuneration  93 

is  favorably  decided  for  the  physician,  the  patient 
is  precluded  from  afterward  bringing  suit  for 
negligence  or  malpractice  occurring  at  the  time  of 
the  services  for  which  the  physician  sues.  The 
object  of  this  rule  of  law  is  to  prevent  circuity  of 
action  and  multiplicity  of  suits.  A  nice  question 
has  been  raised  in  cases  where  the  patient  in  a  suit 
for  compensation  is  defaulted  or  does  not  defend 
himself  in  court.  The  decisions  of  the  various 
States  do  not  agree  as  to  whether  a  case  won  in  this 
manner  by  the  physician  will  bar  the  patient  from 
subsequently  suing  the  physician  for  negligence  and 
malpractice. 

The  question  of  compensation  for  services  as 
an  expert  witness  in  court  has  been  a  much  talked 
of  subject  The  disrepute  into  which  medical  ex- 
pert testimony  has  unfortunately  fallen  has  led  sev- 
eral States  to  put  on  their  statute  books  enactments 
regulating  the  amount  of  pay  an  expert  shall  re- 
ceive for  giving  testimony.  This  has  been  done 
to  prevent  the  payment  of  large  fees  to  experts, 
which  has  been  a  potent  factor  in  creating  the  im- 
pression in  the  public  mind  that  the  opinions  of 
experts  are  bought  and  sold  in  the  market  like  any 
commodity.  Of  course,  the  amount  of  compensa- 
tion of  the  common  witness  is  easily  ascertainable. 
Some  of  the  statutes  relating  to  the  expert  provide 
that  he  shall  receive  only  what  the  ordinary  wit- 
ness is  entitled  to,  while  others  make  provision  for 


94  The  Doctor  in  Court 

extra  remuneration  in  a  reasonable  amount.  The 
question  has  been  raised  many  times  as  to  whether 
or  not  a  physician  can  be  summoned  into  court  and 
compelled  to  testify  as  an  expert  without  additional 
pay.  The  argument  has  been  advanced  that  the 
knowledge  and  experience  possessed  by  a  physician 
is  peculiarly  his  own,  and  he  cannot  therefore  be 
compelled  to  testify  as  an  expert  against  his  will, 
but  the  trend  of  the  decisions  seems  to  be  in  the 
other  direction  and  toward  the  view  that  he  can  be 
made  to  give  his  opinion  without  special  pay  other 
than  that  given  the  ordinary  witness. 

The  law  governing  disputes  over  compensation 
is  the  same  applicable  to  all  contract  cases,  and 
a  surfeit  of  adjudicated  cases  might  be  given  to 
substantiate  and  illuminate  the  various  phases  of 
the  subject  here  touched  upon.  This,  however,  is 
unnecessary.  It  is  best  for  the  member  of  the  pro- 
fession to  refrain  from  resorting  to  the  courts  for 
their  pay,  for  a  doctor's  practice  may  be  sensibly 
hurt  by  the  employment  of  such  drastic  measures, 
especially  in  the  smaller  cities  and  towns  where  the 
good  will  of  all  is  invaluable.  If,  however,  it  is 
expedient  and  advisable  to  bring  suit,  the  medical 
man  should  first  make  sure  that  the  debtor  can 
satisfy  the  judgment  in  event  of  recovery.  This 
subject  of  compensation  causes  one  of  the  pro- 
fession to  attend  the  usage  of  Chinese  physicians 
and  speculate  on  its  delightful  possibilities.  In 
that  republic  it  is  customary  for  a  man  to  pay  his 


Remuneration  95 

physician  so  long  as  he  enjoys  good  health,  but  let 
him  become  ill  and  he  ceases  to  compensate  the 
doctor.  (Further  authorities:  Vol.  39,  American 
Digest  (Century  Edition),  title.  Physicians  and 
Surgeons,  §§  50-62;  Vol.  30,  Cyclopaedia  of  Law 
and  Procedure,  pp.  1592-1604;  Vol.  22,  American 
and  English  Encyclopaedia  of  Law,  pp.  789-798.) 


CHAPTER  V 

CONFIDENTIAL     COMMUNICATIONS 

The  procedure  of  our  courts  in  civil  and  crim- 
inal cases  is  in  its  nature  litigious,  not  inquisi- 
torial :  a  controversy  rather  than  an  investigation. 
From  a  time  very  remote  from  our  own,  certain 
matters  have  by  law  been  hidden  from  the  gaze 
and  scrutiny  of  the  courts,  and  persons  called  to 
testify  cannot  be  made  to  answer  questions  relating 
to  these  sacred  matters.  This  seal  of  silence  placed 
on  the  lips  of  witnesses  is  justified  on  the  grounds 
of  public  policy.  The  interests  of  the  community 
demand  that  the  state  and  the  individual  shall  be 
hedged  with  safeguards  against  the  disclosure  and 
publication  in  court  of  confidential  communications 
between  heads  of  departments  of  the  government 
regarding  secrets  of  state,  and  of  proceedings  of 
the  judiciary.  The  same  cloak  is  thrown  around 
communications  of  a  professional  nature,  as  those 
of  an  attorney  and  his  client,  and  confidences  be- 
tween husband  and  wife  are  likewise  protected. 

This  privilege  does  not  extend  to  physicians  and 
surgeons  under  the  common  law,  and  they  could 
reveal  all  information  secured  from  their  patients 

96 


Confidential  Communications  97 

regardless  of  the  effect  of  such  disclosure  on  the 
patient;  in  fact,  physicians  and  surgeons  were  com- 
pelled to  answer  questions  regarding  these  hidden 
matters  if  called  upon  in  court  to  do  so.  In  the 
Duchess  of  Kingston's  trial,  a  late  18th  century 
case  (20  How.  St.  Tr.,  573),  Lord  Mansfield  said  a 
surgeon  has  no  privilege,  and  ''if  a  surgeon  was 
voluntarily  to  reveal  these  secrets,  to  be  sure,  he 
would  be  guilty  of  a  breach  of  honor  and  of  great 
indiscretion;  but  to  give  that  information  in  a 
court  of  justice,  which  by  the  law  of  the  land  he 
is  bound  to  do,  will  never  be  imputed  to  him  any 
indiscretion  whatever. ' ' 

Many  of  the  States,  however,  have  passed 
statutes  prohibiting  physicians  from  disclosing  in- 
formation received  from  their  patients  in  their 
professional  capacity,  upon  the  ground  that  such 
privilege  enables  a  patient  without  risk  of  ex- 
posure to  disclose  to  his  physician  all  information 
essential  to  a  proper  treatment  of  the  case.  With- 
out such  protection  men  would,  perhaps,  be  obliged 
to  suffer  injuries  without  alleviation  from  the  art 
of  medicine  and  surgery.  As  in  the  case  of  an 
attorney  and  his  client,  a  knowledge  of  all  the  facts 
is  necessary  in  order  to  pursue  the  course  of  action 
best  suited  to  assist  the  patient  in  his  trouble,  and 
the  purpose  of  such  statutes  is  to  invite  this  con- 
fidence and  to  prevent  a  breach  of  that  trust. 

The  following  States  have  acted  upon  this  sup- 
posed necessity  and  have  passed  laws  giving  pro- 
fessional communications  between  physicians  and 


98  The  Doctor  in  Court 

their  patients  immimity  from  disclosure :  Arizona, 
Arkansas,  California,  Colorado,  District  of  Colum- 
bia, Idaho,  Indiana,  Iowa,  Kansas,  Michigan, 
Minnesota,  Missouri,  Montana,  Nevada,  New  York, 
Nebraska,  North  Carolina,  North  Dakota,  Ohio, 
Oklahoma,  Oregon,  Pennsylvania,  South  Dakota, 
Utah,  Washington,  West  Virginia,  Wisconsin,  and 
Wyoming. 

Mr.  Justice  Miller,  in  speaking  of  the  New 
York  statute,  said;  ''It  is  a  just  and  reasonable 
enactment,  introduced  to  give  protection  to  those 
who  were  in  charge  of  physicians  from  the  secrets 
disclosed  to  enable  them  to  properly  prescribe  for 
diseases  of  the  patient.  To  open  the  door  to  the 
disclosure  of  secrets  revealed  on  the  sick  bed,  or 
when  consulting  a  physician,  would  destroy  con- 
fidence between  the  physician  and  the  patient,  and, 
it  is  easy  to  see,  might  tend  very  much  to  prevent 
the  advantages  and  benefits  which  flow  from  this 
confidential  relationship"  (Edington  v.  Mutual 
Lifelns.  Co.,  67N.  Y.,  185). 

In  order  that  the  privilege  may  be  successfully 
claimed  in  court,  it  must  appear  that  the  relation- 
ship of  physician  and  patient  existed  at  the  time 
the  information  was  given  to  the  physician  (Nesbit 
V.  People,  19  Colo.,  441;  Clark  v.  State,  8  Kan. 
App.,  782),  though  this  relationship  may  exist  even 
in  cases  where  the  employment  of  the  physician  is 
by  some  third  party.  That  is  to  say,  the  privilege 
does  not  depend  on  compensation  (Smart  v.  Kansas 
City,  208  Mo.,  162;  144  L.  R.  A.  (N.  S.),  565  j 


Confidential,  Communications  99 

Colorado  Fuel  and  Iron  Co.  v.  Cuminings,  8  Colo. 
App.,  542;  Renihan  v.  Dennin,  103  N.  Y.,  573; 
Myer  v.  Supreme  Lodge,  178  N.  Y.,  63;  664:  L.  E. 
A.,  839).  So  it  was  held  where  one  was  being  tried 
for  murder  and  the  defence  was  insanity,  the  jail 
physician  could  not  answer  questions  based  on  a 
knowledge  of  the  accused  obtained  while  under  his 
observation  in  jail  (People  v.  Schuyler,  106  N.  Y., 
298) .  It  is  immaterial  whether  or  not  the  patient  is 
a  charitable  patient  at  a  hospital  or  in  a  private 
house ;  the  statute  may  be  invoked  by  him  just  the 
same  ( Smart  v.  Kansas  City,  supra) .  A  partner  or 
physician  called  in  consultation  cannot  reveal  com- 
munications he  has  had  brought  to  his  notice  (Reni- 
han V.  Dennin,  103  N.  Y.,  573 ;  Raymond  v.  Bur- 
lington Ry.  Co.,  65  la.,  152). 

Where  a  physician  examines  a  patient  merely 
for  information,  and  there  is  no  misunderstanding 
as  to  the  purpose  of  the  examination,  then  the  in- 
formation so  acquired  is  not  held  to  be  confidential 
in  the  sense  that  it  cannot  be  revealed  by  the  doc- 
tor in  court  (Nesbit  v.  People,  19  Colo.,  441).  Thus, 
in  Clark  v.  State  (8  Kan.  App.,  782),  the  defendant 
was  charged  with  being  the  father  of  an  unborn 
illegitimate  child  of  the  complaining  witness,  who 
testified  that  she  first  had  intercourse  with  the  de- 
fendant Clark  July  15,  which  he  denied,  saying 
that  it  took  place  August  3.  He  doubted  the  chas- 
tity of  the  woman  and  the  paternity  of  the  child. 
It  was  suggested  she  be  examined  by  a  physician 
of  standing  and  if  such  inspection  showed  her 


100  The  Doctor  in  Couet 

pregnancy  to  be  of  no  greater  duration  than  four 
months,  he  would  consider  himself  the  author  of 
the  girl's  trouble  and  marry  her.  This  was  as- 
sented to.  The  examination  showed  her  pregnancy 
to  be  of  six  months'  duration.  Dr.  P.,  who  made 
the  examination,  was  a  witness  at  the  trial  but 
was  not  allowed  to  give  evidence  that  at  the  time 
of  the  examination  the  girl  made  the  statement 
to  him  that  the  first  connection  was  August  3. 
This  evidence  was  excluded  as  being  confidential 
under  the  statute. 

The  upper  court  held  otherwise,  saying,  "Dr. 
P.  was  not  present  as  the  physician  of  the  com- 
plaining witness ;  she  was  not  his  patient ;  the  ex- 
amination was  not  made  for  the  purpose  of  treating 
her  for  any  physical  or  supposed  physical  distress. 
She  agreed  and  submitted  to  the  examination  for 
the  sole  purpose  of  satisfying  the  plaintiff  in  error 
as  to  whether  he  was  the  father  of  the  child.  She 
knew  that  the  result  of  the  examination  was  to  be 
made  known  to  her  parents  and  to  the  plaintiif  in 
error,  before  she  submitted  to  it.  Under  such 
circumstances,  statements  made  by  her  to  the  phy- 
sician during  the  examination  as  to  the  time  when 
the  first  connection  took  place  cannot  be  regarded 
as  confidential."  (See,  also.  People  v.  Cole,  113 
Mich.,  83.) 

If,  however,  a  physician  after  examining  a  pa- 
tient for  information  only,  advises  or  treats  the 
person  examined,  the  relationship  of  physician  and 
patient  is  thereby  created  and  the  physician  will 


JCoNPiDENTiAL  Communications         101 

be  precluded  from  disclosing  the  information  ob- 
tained (Weitz  V.  R.  E.  Co.,  53  Mo.  App.,  39). 

One  who  seeks  the  protection  of  the  statute 
must,  generally  speaking,  be  a  physician  or  surgeon 
or  duly  licensed  practitioner  following  a  recog- 
nized school  of  good  repute.  A  dentist  is  not  in- 
cluded in  this  definition  of  persons  who  may  claim 
the  privilege  (People  v.  De  France,  104  Mich.,  563; 
28  L.  E.  A.,  139). 

Many  of  the  statutes  limit  the  confidence  sought 
to  be  protected  to  information  necessary  for  the 
physician  to  prescribe  for  the  patient  or  act  in 
his  professional  capacity.  The  word  ''necessary" 
must  not  be  taken  in  a  restricted  sense,  so  as  to 
allow  evidence  of  statements  honestly  elicited  by 
questions  or  voluntarily  given  for  purposes  of  as- 
sisting the  physician  to  properly  treat  the  case,  even 
though  it  is  manifest  that  the  disease  or  injury 
could  have  been  diagnosticated  and  treated  without 
all  of  such  information  (Eenihan  v.  Dennin,  103  N. 
Y.,  573;  Sloan  v.  N.  Y.  C.  E.  Co.,  45  N.  Y.,  125; 
In  re  will  of  Bruendl,  102  Wis.,  45).  The  same  is 
also  true  of  the  word  ' '  prescribe, ' '  which  must  not 
be  limited  merely  to  the  meaning  ''write  a  pre- 
scription," but  must  be  taken  to  mean  remedy  or 
alleviate  the  disease  or  injury  (In  re  Will  of 
Bruendl,  102  Wis.,  45). 

The  information  considered  confidential  may  be 
acquired  by  the  physician  from  the  patient  not  only 
by  verbal  communications  between  them,  but  by 
examination  or  by  looking  at  the  patient.    It  may 


102  The  Doctor  in  Court  * 

come  from  statements  of  other  persons  present, 
from  audible  signs,  by  touching  the  patient,  or  by 
writing.  The  New  York  Court  said  of  this  feature 
of  the  statute:  "When  it  speaks  of  information, 
it  means  not  only  communications  received  from 
the  lips  of  the  patient,  but  such  knowledge  as  may 
be  acquired  from  the  patient  himself,  from  the 
statement  of  others  who  may  surround  him  at  the 
time,  or  from  observation  of  his  appearance  and 
symptoms.  Even  if  the  patient  could  not  speak, 
or  his  mental  powers  were  so  affected  that  he  could 
not  accurately  state  the  nature  of  his  disease,  the 
astute  medical  observer  would  readily  comprehend 
his  condition.  Information  thus  acquired  is  clearly 
within  the  scope  and  meaning  of  the  statute"  (Ed- 
ington  V.  Miitual  Life  Ins.  Co:,  67  N.  Y.,  185).  The 
presumption  is  that  such  information  was  given  for 
the  purpose  of  treating  the  patient. 

The  provisions  of  many  of  the  statutes,  that 
information  is  confidential  only  when  it  is  essential 
to  enable  the  physician  to  act  in  his  professional 
capacity,  have  provoked  a  disagreement  among  the 
courts.  Some  maintain  that  only  such  informa- 
tion as  manifestly  applies  to  the  exigencies  of  the 
case  comes  within  the  provision  of  the  enactments. 
On  the  other  hand,  there  are  courts  which  interpret 
the  statute  in  a  broader  way,  protecting  all  com- 
munications which  the  physician  receives  as  such. 
*'The  legislature,"  said  the  court  of  Wisconsin 
(Boyle  V.  Northwestern  Mutual  Relief  Asso.,  95 
Wis.,  312),  ''has  decided  wisely  that  public  policy 


Confidential  Communications         103 

requires  such  measure  of  restriction  upon  the  free- 
dom of  the  physician  to  testify  or  of  others  to 
demand  testimony.  But  as  it  rested  with  the  legis- 
lature to  discover  the  necessity  for,  and  to  effec- 
tively impose,  such  restrictions,  which  are  in  dero- 
gation of  the  common  |aw,  it  is  for  the  courts  only 
to  enforce  such  as  have  been  imposed  and  not  others 
which  the  legislature  has  omitted.  The  seal  placed 
on  the  lips  of  the  physician  only  relates  to  'infor- 
mation necessary  to  enahle  him  to  prescribe  for 
such  patient  as  a  physician. '  The  tendency  of  all 
courts  has  been  and  should  be  toward  liberal  con- 
struction of  these  words  to  effectuate  the  purpose 
of  the  statute.'* 

There  is  a  large  number  of  cases  in  the  books 
where  a  patient  who  has  met  with  an  accidental 
injury  makes  damaging  statements  to  the  physician 
as  to  the  cause  of  such  injury.  Where  such  state- 
ments are  obtained  by  the  physician  for  the  purpose 
of  forming  a  correct  opinion  as  to  the  injury  and 
thereby  being  enabled  to  efficaciously  and  safely 
treat  the  patient,  then  admissions  of  this  descrip- 
tion are,  as  we  have  seen,  regarded  as  confidential 
and  are  accordingly  protected  by  the  statute.  In 
certain  instances  the  courts  have  carried  this  doc- 
trine still  further,  holding  that  a  physician  will 
not  be  permitted  to  abuse  the  professional  relation- 
ship by  securing  statements  from  the  patient 
against  the  patient's  interest  for  subsequent  use 
against  him. 

In  a  certain  case  a  physician,  while  assisting 


104  The  Doctor  in  Couet 

in  dressing  the  injuries  of  a  man  who  had  teen 
hurt  in  a  railroad  accident,  engaged  him  in  con- 
versation, during  which  the  injured  person  in  reply 
to  a  question  as  to  how  the  accident  occurred, 
made  a  damaging  admission.  The  court  held  that 
the  doctor  could  not  disclose  this  information  on 
the  witness  stand,  and  thus  expressed  himself: 
* '  The  physician  had  no  business  to  interrogate  his 
patient  for  any  purpose  or  object  other  than  to 
ascertain  the  nature  and  extent  of  the  injury,  and 
to  gain  such  other  information  as  was  necessary 
to  enable  him  to  properly  treat  the  injury  and 
accomplish  the  object  for  which  he  was  called 
professionally,  and  such  communications  are  priv- 
ileged and  he  cannot  disclose  them.  If  the  phy- 
sician took  advantage  of  the  fact  of  being  called 
professionally,  and  while  there  in  that  capacity 
made  inquiries  of  the  injured  party  concerning 
matters  in  which  he  had  no  interest  or  concern 
professionally,  or  for  the  purpose  of  qualifying 
himself  as  a  witness,  he  cannot  be  permitted  to 
disclose  the  information  received"  (Penn  Co.  v. 
Marion,  123  Ind.,  419). 

It  must  be  remembered  that  the  object  of  the 
statutes  is  not  to  smother  the  truth,  and  the  courts 
therefore  deem  it  their  right  to  know  something 
of  the  attending  circumstances  under  which  the 
communication  was  made  (Edington  v.  ^tna  Life 
Ins.  Co.,  77  N.  Y.,  564).  While  the  privilege  is 
created  for  the  patient's  benefit  alone  (Springer  v. 
Byram,  137  Ind.^  15),  nevertheless  he  has  the  right 


CONFIDEHTIAL   COMMUNICATIONS  105 

to  waive  fhe  protection  offered  him  by  the  statute 
CMorris  v.  Morris,  119  Ind.,  341),  and  this  right 
does  not  rest  upon  any  statutory  provision  author- 
izing him  to  do  so  (Boyle  v.  Northwestern  Mut. 
Eelief  Asso.,  95  Wis.,  312). 

If  a  patient  sues  his  physician  for  negligence 
or  malpractice,  or  if  he  has  the  physician  give  evi- 
dence in  his  behalf,  it  is  patent  that  either  course 
of  action  would  constitute  a  waiver.  The  privilege 
being  a  personal  one,  it  must  be  claimed  by  the 
patient  or  his  representatives  before  evidence  of 
the  communication  which  it  is  desired  to  protect 
is  admitted  (Briesenmeister  v.  Supreme  Lodge 
Knights  of  Pythias,  81  Mich.,  525;  Heuston  v. 
Simpson,  115  Ind.,  62). 

The  beneficiary  or  assignee  of  a  beneficiary 
under  a  life  insurance  policy  on  the  patient's  life 
may  claim  the  privilege  (Briesenmeister  v.  Su- 
preme Lodge,  81  Mich.,  525). 

The  statute  does  not  prevent  a  physician  from 
testifying  that  he  prescribed  for  the  deceased,  but 
a  prescription  for  the  patient  or  the  drugs  con- 
tained therein  could  not  be  put  in  evidence  (Nel- 
son V.  Nederland  Life  Ins.  Co.,  110  la.,  600),  nor 
could  the  account  books  of  the  physician  be  ex- 
amined if  they  held  confidential  and  privileged 
knowledge  concerning  the  patient  (Mott  v.  Ice  Co., 
2  Abb.  N.  C.  143).  It  has  been  held,  however,  that 
a  physician  can  testify  to  the  number  of  visits  he 
paid  his  patient  as  family  physician  and  the  dates 
thereof  (Briesenmeister  v.  Supreme  Lodge,  supra). 


106  The  Doctor  ik  Court 

Information  imparted  to  a  physician  with  an 
illegal  purpose  in  view,  as  the  performance  of  a 
criminal  operation,  would  not,  of  course,  come 
within  the  policy  of  the  statute.  But  in  a  breach 
of  promise  suit  where  the  defendant  called  a  phy- 
sician as  witness  and  asked  him  if  at  a  certain 
time  prior  to  the  trial  the  plaintiff  had  consulted 
Mm  with  regard  to  ridding  herself  of  a  child  she 
was  then  pregnant  with,  it  was  held  that  such  com- 
munication was  privileged  and  could  not  be  dis- 
closed. For,  procuring  an  abortion  may  be  lawful 
and  justified  if  necessary  to  save  the  mother's 
life  (Guptill  V.  Verback,  58  la.,  98). 

It  may  be  said  in  summing  up  that  under  most 
of  the  statutes  the  essential  elements  of  a  privileged 
or  confidential  communication  are:  (a)  The  rela- 
tionship of  physician  and  patient;  (b)  informa- 
tion acquired  during  the  existence  of  this  relation- 
ship; and  (c)  the  propriety  and  necessity  of  the 
information  so  acquired  to  enable  the  physician  to 
skilfully  treat  the  patient  professionally.  These 
statutes  being  in  derogation  of  the  common  law 
oftentimes  through  their  operation  exclude  the  best 
evidence.  It  must  not  be  supposed  that  they  are 
intended  to  prevent  the  physician  from  testifying 
to  all  communications  passing  between  himself  and 
his  patient.  The  purpose  and  object  of  all  trials 
is  to  bring  to  light  the  true  facts  of  the  case,  and 
the  scope  of  the  statutes  cannot  be  enlarged  to  in- 
clude matters  not  clearly  within  their  policy,  as  the 
ends  of  justice  would  be  thwarted  and  the  beneficial 


Confidential  Communications  107 

purpose  of  the  statutes  defeated.  It  is  upon  this 
question  that  the  courts  dealing  with  enactments 
not  dissimilar  from  each  other  clash. 

An  extended  examination  of  the  various  acts 
and  the  host  of  decisions  they  have  given  rise  to 
has  not  been  made  here.  If  the  physician  is  called 
upon  in  court  to  reveal  a  communication  of  a  con- 
fidential nature,  it  is  always  best  for  him  to  ask 
if  it  is  necessary  for  him  to  do  so,  as  the  relation 
of  physician  and  patient  should  always  be  regarded 
by  the  members  of  the  profession  as  one  of  trust 
and  confidence. 


CHAPTER   VI 

THE    CRIMINAL    RESPONSIBILITY    OF    THE    PROFESSION 

Thus  far  we  have  been  concerned  only  with  the 
civil  rights  and  obligations  of  physicians  and  sur- 
geons. The  state  is  neutral  in  its  attitude  toward 
many  wrongful  acts  which  are  of  a  private  char- 
acter in  the  injury  they  cause.  This  is  the  case 
with  the  civil  wrongs  which  we  have  been  consider- 
ing. Yet  where  an  injury  is  "so  atrocious  in  its 
nature,  or  so  dangerous  in  its  example,  that,  be- 
sides the  loss  it  occasions  to  the  individual  who 
suffers  by  it,  it  affects,  in  its  immediate  operation 
or  in  its  consequences,  the  interest,  the  peace, 
the  dignity,  or  the  security  of  the  public"  (3  Wil- 
son, 4),  it  is  said  to  be  a  crime,  and  the  government 
then  steps  in  and  punishes  such  wrong  by  a  criminal 
proceeding  in  its  own  name. 

We  have  seen  that  in  civil  suits  for  damages 
the  malice  or  intent  of  the  wrongdoer  does  not 
have  to  be  proved.  The  rule  of  the  criminal  law 
is  different.  Legal  guilt  has  to  do  with  the  animus 
or  mind  of  the  wrongdoer.  To  be  guilty  of  a  crime, 
one  must  have  had  an  intent  coupled  with  a  wrong- 
ful act  and  capacity  to  commit  that  act.  The  re- 
lationship between  intent  and  capacity  is  very 

108 


Ceiminal  Responsibility  109 

close,  for  a  person  by  reason  of  physical  or  men- 
tal incompetency  may  be  presumed  to  be  incapable 
of  entertaining  a  criminal  intent.  This  is  the  theory 
of  the  insanity  defence ;  that  is,  one  who  is  found 
to  be  legally  insane  is  deemed  incapable  of  enter- 
taining a  criminal  intent  and  is  therefore  not  re- 
sponsible for  committing  a  crime.  The  guilty  mind 
or  criminal  purpose  may  be  implied  from  the  crun- 
inal  act.  It  is  an  antique  maxim  that  ignorance  of 
the  law  excuses  no  man,  and  consequently  it  is  not 
necessary  that  the  person  committing  the  wrong- 
ful act  should  be  aware  that  it  was  forbidden.  In 
other  words,  from  the  mere  doing  of  the  prohibited 
act  the  intent  will  be  supposed. 

The  compliment  which  our  law  pays  a  man  ac- 
cused of  crime  of  presuming  him  to  be  innocent 
until  the  contrary  has  been  proved  beyond  all  rea- 
sonable doubt  is  so  well  known  as  to  hardly  bear 
repeating.  The  individual  is  likewise  protected 
from  being  compelled  to  give  incriminating  evi- 
dence, the  law  recognizing  the  unsoundness  of  such 
testimony.  In  fine,  the  law  hedges  the  individual 
with  an  elaborate  system  of  outworks  to  guard  his 
personal  liberty  and  prevent  the  possibility  of  an 
innocent  person  suffering  punishment  for  a  crime. 
Happily  the  number  of  cases  in  the  books  in  which 
physicians  and  surgeons  have  come  afoul  the  crimi- 
nal law  are  comparatively  few  in  number.  Their 
absence  is  significant.  There  are,  however,  in  all 
walks  of  life  corrupt  and  dishonest  persons,  and  it 
is  with  few  exceptions  their  cases  which  have  re- 


110  The  Doctoe  in  Court 

ceived  tlie  attention  of  the  courts  in  criminal  pro- 
ceedings. 

Now  far  and  away  the  greater  number  of 
cases  in  which  physicians  and  surgeons  have  been 
charged  with  crime  are  prosecutions  for  the  per- 
formance of  criminal  abortions.  Let  us  first  then 
consider  the  crime  of  abortion.  Abortion  may  be 
legally  defined  as  the  expulsion  of  the  foetus  by 
artificial  means  at  any  time  during  the  period  of 
gestation.  The  law  does  not  make  the  distinction 
as  in  medicine  where  an  abortion  is  generally  taken 
to  mean  the  destruction  of  the  life  of  the  foetus 
during  the  first  six  months  of  pregnancy.  The 
crime  of  abortion  must  not  be  confused  with  that 
of  infanticide,  which  is  the  killing  of  a  child  after 
it  has  been  born. 

To  procure  the  premature  delivery  of  a  preg- 
nant woman  by  artificial  means  may  be  justifiable 
or  criminal.  If  there  are  reasonable  grounds  for 
believing  the  mother's  life  will  be  forfeited  if  an 
abortion  is  not  performed,  then  there  is  legal  jus- 
tification for  such  a  course  of  action.  It  is,  how- 
ever, best  for  a  physician  to  obtain  a  concurring 
opinion  from  another  physician  of  good  standing  to 
substantiate  his  own  belief  in  such  necessity.  Spe- 
cial provision  is  made  for  this  by  the  statutes  of 
some  States.  The  consent  of  the  patient  must,  of 
course,  be  secured  before  proceeding  with  the  oper- 
ation, or,  as  we  have  seen,  the  physician  will  be 
answerable  in  damages  ( Civil  Eesponsibility  of  the 
Profession) . 


Criminal  Responsibility  111 

Under  the  old  common  law  one  wlio  attempted 
to  procure  an  abortion  with  the  mother's  consent 
was  deemed  unindictable  for  such  act  unless  the 
mother  was  ''quick  with  child"  at  the  time  when 
the  abortion  was  attempted  or  in  fact  accom- 
plished. Save  with  regard  to  certain  civil  rights 
the  child  was  not  considered  in  esse  or  to  have 
an  independent  existence  until  it  had  quickened 
in  its  mother's  womb  (1  Bl.  Comm.,  129). 

Blackstone  said:  ''Life  begins,  in  contempla- 
tion of  law,  as  soon  as  an  infant  is  able  to  stir 
in  its  mother's  womb."  So  at  common  law  if  the 
mother  or  a  physician  prior  to  the  time  of  quick- 
ening attempted  to  or  actually  did  destroy  the 
life  of  the  foetus  by  the  use  of  drugs  or  by  external 
or  internal  violence,  they  were  only  guilty  of  a 
misdemeanor.  If,  however,  the  physician  brought 
about  premature  action  of  the  organs  through  the 
agency  of  drugs  or  instruments  or  otherwise,  with- 
out the  consent  of  the  mother  and  before  she  had 
become  quick  with  child,  the  physician  was  guilty 
of  an  assault  and  battery.  But  the  consent  of  the 
mother  would  be  no  defence  if  she  died  as  a  result 
of  such  acts. 

Said  Chief  Justice  Shaw  in  Commonwealth  v. 
Parker  (9  Mete.  (Mass.),  263) :  "The  use  of  vio- 
lence upon  a  woman,  with  an  intent  to  procure  a 
miscarriage,  without  her  consent,  is  an  assault 
highly  aggravated  by  such  wicked  purpose,  and 
would  be  indictable  at  common  law.  So  where, 
upon  a  similar  attempt  by  drugs  or  instruments,  the 


112  The  Doctoe  in  Court 

death  of  the  mother  ensues,  the  party  making  sudi! 
an  attempt,  with  or  without  the  consent  of  the 
woman,  is  guilty  of  the  murder  of  the  mother,  on 
the  ground  that  it  is  an  act  done  without  lawful 
purpose,  dangerous  to  life,  and  that  the  consent  of 
the  woman  cannot  take  away  the  imputation  of 
malice,  any  more  than  in  the  case  of  a  duel,  where, 
in  like  manner,  there  is  consent  of  the  parties." 

Lord  Hale  speaking  more  than  two  centuries 
ago  laid  down  the  law  in  these  words :  * '  If  a  woman 
be  with  child  and  any  gives  her  a  potion  to  de- 
stroy the  child  within  her,  and  she  takes  it  and  it 
works  so  strongly  that  it  kills  her,  this  is  murder ; 
for  it  was  not  to  cure  her  of  disease,  but  unlawfully 
to  destroy  the  child  within  her;  and  therefore  he 
who  gives  a  potion  to  this  end,  must  take  the  haz- 
ard, and  if  it  kills  the  mother  it  is  murder"  (1 
Hale  P.  C,  429).  It  is  not  necessary  that  the 
agency  employed  to  procure  an  abortion  should 
be  capable  of  accomplishing  it  (Dougherty  v.  Peo- 
ple, 1  Colorado,  514).  Consent  is  not  a  justifica- 
tion that  would  avail  one  as  a  defence  in  court 
(Commonwealth  v.  Snow,  116  Mass.,  47),  and  to 
say  that  the  act  was  prompted  by  a  desire  to  shield 
a  woman's  shame  would  not  vindicate  the  wrong- 
doer (Commonwealth  v.  Wood,  11  Gray,  85). 

The  common  law  rule  distinguishing  between  a 
woman  quick  with  child  and  one  who  is  pregnant 
but  has  not  reached  the  quickening  stage  was  also 
law  in  this  country  until  supplanted  by  statute 
(Commonwealth  v.  Bangs,  9  Mass.,  387  j  Common- 


Ceiminal  Responsibility  113 

wealth  V.  Parker,  9  Metcalf  (Mass.),  263;  State  v. 
Cooper,  22  N.  J.  L.,  52 ;  Mitchell  v.  Commonwealth, 
78  Ky.,  204).  Under  the  common  law  the  test  as 
to  the  time  at  which  a  woman  became  *' quick" 
seems  to  have  been  whether  or  not  she  herself  felt 
the  child  within  her  (Rex  v.  Phillips,  3  Camb.,  73), 
though  it  would  also  involve  a  question  of  medical 
jurisprudence  to  be  determined  by  other  evidence. 
Yet  all  this  difference  between  one  who  is  quick 
with  child  and  one  who  is  not,  has  been  generally 
done  away  with  by  statute,  it  now  being  considered 
equally  wrongful  to  procure  or  attempt  to  procure 
tjie  abortion  of  a  woman  whether  she  be  in  an  early 
or  advanced  stage  of  pregnancy.  This  was  ap- 
parently first  remedied  by  a  statute  passed  in  the 
reign  of  King  George  III,  which  took  cognizance 
of  the  common  law  distinction  and  made  it  a  felony 
to  cause  the  miscarriage  of  a  woman  not  quick 
with  child. 

The  Massachusetts  statute  covering  this  crime 
is  illustrative  of  the  type  of  enactment  in  force 
very  generally  throughout  the  country.  It  reads 
as  follows : 

''Whoever,  with  intent  to  procure  the 
miscarriage  of  a  woman,  unlawfully  admin- 
isters to  her,  or  advises  or  prescribes  for 
her,  or  causes  any  poison,  drug,  medicine  or 
other  noxious  thing  to  be  taken  by  her,  or 
with  the  like  intent,  unlawfully  uses  any  in- 
strument or  other  means  whatever,  or  with 


114  The  Doctoe  in  Coubt 

like  intent,  aids  or  assists  therein,  shall,  if 
she  dies  in  consequence  thereof,  be  punished 
by  imprisonment  in  the  state  prison  for  not 
less  than  five  nor  more  than  twenty  years ; 
and,  if  she  does  not  die  in  consequence  thers- 
of,  by  imprisonment  in  the  state  prison  not 
more  than  seven  years  and  by  a  fine  of  not 
more  than  two  thousand  dollars."  (Revised 
Laws,  Chapter  212,  Section  15.) 

In  preceding  chapters  we  have  seen  that  by  the 
employment  of  a  physician  and  his  undertaking  to 
treat  a  case  certain  duties  and  legal  obligations  are 
imposed  upon  him,  which  he  must  faithfully  dis- 
charge or  respond  in  damages  to  the  patient.  The 
physician  is  required  to  bring  to  his  employment 
reasonable  skill  and  cannot  be  negligent  in  his  at- 
tention to  or  treatment  of  the  patient.  Let  us  sup- 
pose, as  occasionally  happens,  that  the  death  of  the 
patient  ensues.  Would  a  want  of  skill  and  care  on 
the  physician's  part  render  him  criminally  re- 
sponsible 1 

Now  an  act  which  causes  the  death  of  a  human 
being  may  be  murder,  manslaughter,  or  misadven- 
ture, according  to  the  circumstances.  Where  it 
appears  the  killing  was  with  malice  aforethought, 
it  is  murder;  where  there  is  no  premeditation  or 
malice  it  is  manslaughter.  Manslaughter  may  be 
voluntary  where  the  killing  is  done  in  heat  of  blood, 
or  it  may  be  involuntary  by  negligently  performing 
a  legal  duty  or  negligently  omitting  to  discharge 


Criminal  Responsibility  115 

such  an  obligation.  If  death  results  while  one  is 
committing  an  unlawful  act,  such  as  procuring  the 
miscarriage  of  a  woman,  that  also  would  be  man- 
slaughter. 

' '  The  meaning  of  negligence,  in  the  common  use 
of  language,"  says  Mr.  Justice  Stephen  (History 
of  the  Criminal  Law,  Vol.  II,  p.  123),  ''is  very 
general  and  indefinite.  It  is  practically  sjmony- 
mous  with  heedlessness  or  carelessness,  not  taking 
notice  of  matters  relevant  to  the  business  in  hand, 
of  which  notice  might  and  ought  to  have  been  taken. 
This  meaning  is  no  doubt  included  in  the  legal 
sense  of  the  term,  but  in  reference  to  criminal  law 
the  word  has  also  the  wider  meaning  of  omitting, 
for  whatever  reason,  to  discharge  a  legal  duty,  e.  g., 
the  omission  by  a  medical  man  to  exercise  the 
skill  which  it  is  his  duty  to  exercise." 

The  doctrine  as  laid  down  by  the  courts  of  Eng- 
land and  followed  in  that  country  seems  to  be  to 
the  effect  that  a  person  undertaking  to  concern 
himself  with  the  life  and  health  of  another  must 
suffer  the  penalty  if  he  cause  his  patient's  death 
through  a  gross  want  of  skill  and  care.  It  is  im- 
material whether  he  is  educated  or  not,  whether 
he  is  licensed  or  unlicensed,  if  death  follows  as  a 
result  of  his  gross  negligence  or  incompetency,  he 
is  guilty  of  manslaughter.  As  Judge  Park  said  in 
the  English  case  of  Rex  v.  Long  (4  C.  &  P.,  398), 
*'I  call  it  acting  wickedly  when  a  man  is  grossly 
ignorant  and  yet  affects  to  cure  people,  or  when  he 
is  grossly  inattentive  to  their  safety. ' ' 


116  The  Doctob  in  Couet 

In  another  case  where  the  defendant  was  in- 
dicted for  manslaughter,  having  administered  white 
vitriol,  thereby  causing  a  man's  death,  the  court 
said:  *'I  am  clear  that  if  a  person  not  having  a 
medical  education,  and  in  a  place  where  medical 
education  might  be  obtained,  takes  on  himself  to 
administer  medicine  which  may  have  a  dangerous 
effect,  and  such  medicine  destroys  the  life  of  the 
patient  to  whom  it  is  administered,  it  is  man- 
slaughter. The  party  may  not  mean  to  cause 
death;  on  the  contrary  he  may  mean  to  produce 
beneficial  effects;  but  he  has  no  right  to  hazard 
medicine  of  a  dangerous  tendency  where  medical 
assistance  can  be  obtained.  If  he  does,  he  does  it 
at  his  peril"  (Nanny  Simpson's  Case,  1  Levin, 
172). 

In  Rex  V.  Williamson  (3  C.  &  P.,  635,  cited  in 
State  V.  Hardister,  38  Ark.,  605)  the  defendant 
who  acted  as  a  man-midwife  tore  away  part  of  the 
prolapsed  uterus  of  a  woman  whom  he  had  de- 
livered of  a  child,  thinking  it  to  be  a  part  of  the 
placenta.  The  woman  died  as  a  result.  Upon  the 
trial  of  the  midwife  for  murder  Lord  Ellenborough 
said  in  his  summary  to  the  jury:  "There  has  not 
been  a  particle  of  evidence  adduced  which  goes 
to  convict  the  prisoner  of  the  crime  of  murder ;  but 
still  it  is  for  you  to  consider  whether  the  evidence 
goes  so  far  as  to  make  out  a  case  of  manslaughter. 
To  substantiate  the  charge,  the  prisoner  must  have 
been  guilty  of  criminal  misconduct,  arising  either 
from  the  grossest  ignorance  or  the  most  criminal 


Ceiminal  Responsibility  117 

inattention.  One  or  the  other  of  these  is  necessary 
to  make  him  guilty  of  that  criminal  negligence  and 
misconduct,  which  is  essential  to  make  out  a  case 
of  manslaughter. ' ' 

Nevertheless,  there  was  a  tendency  at  one  time 
in  this  country  to  adopt  the  seemingly  more  humane 
doctrine  that  the  interests  of  society  are  subserved 
by  holding  a  physician  civilly  liable  in  damages  for 
the  consequences  of  his  ignorance,  without  imposing 
on  him  criminal  liability  when  he  acts  with  good 
motives  and  an  honest  intent  (State  v.  Schulz,  55 
Iowa,  628 ;  Commonwealth  v.  Thompson,  6  Mass., 
137;  Rice  v.  State,  8  Mo.,  561).  Thus  in  the  early 
Massachusetts  case  of  Commonwealth  v.  Thompson 
(6  Mass.,  137,  decided  in  1809)  the  defendant,  an 
ignorant  doctor  administering  remedies  of  his  own 
concoction,  so  persistently  gave  emetics  to  his  pa- 
tient that  he  became  exhausted,  and  from  all  ap- 
pearances the  treatment  was  the  proximate  cause 
of  the  patient's  death.  The  court  held  that  ''if  one 
assuming  the  character  of  a  physician,  through 
negligence  administered  to  his  patient  with  an  hon- 
est intention  and  expectation  of  cure,  but  which 
causes  the  death  of  the  patient,  he  is  not  guilty 
of  felonious  homicide." 

In  Rice  v.  State  (8  Mo.,  561,  decided  in  1844) 
the  prisoner  caused  the  death  of  a  woman  by  giving 
lobelia.  His  treatment  was  for  sciatica,  but  the 
woman  was  then  in  the  eighth  month  of  pregnancy 
and  soon  after  taking  the  defendant's  treatment 
she  had  a  premature  delivery  and  died.    She  was 


118  The  Doctor  in  Court 

the  motlier  of  three  children,  had  always  done  well 
after  confinement,  and  prior  to  the  prisoner's  treat- 
ment had  been  in  better  health  than  for  many 
years.  The  court  said:  "If  a  person  assume  to  act 
as  a  physician  however  ignorant  of  medical  science, 
and  prescribe  with  an  honest  intention  of  curing  the 
patient,  but  through  ignorance  of  the  quality  of  the 
medicine  prescribed  or  the  nature  of  the  disease  or 
both,  the  patient  die  in  consequence  of  the  treat- 
ment contrary  to  the  expectation  of  the  person  pre- 
scribing, he  is  not  guilty  of  murder  or  man- 
slaughter. But  if  the  party  prescribing  have  so 
much  knowledge  of  the  fatal  tendency  of  the  pre- 
scription that  it  may  be  reasonably  presumed  that 
he  administered  the  medicine  from  an  obstinate, 
wilful  rashness  and  not  with  an  honest  intention 
and  expectation  of  effecting  a  cure,  he  is  guilty  of 
manslaughter  at  least,  though  he  might  not  have 
intended  any  bodily  harm." 

By  the  later  American  cases  it  appears  that  the 
courts  in  this  country  lean  toward  the  English  doc- 
trine of  holding  the  professional  or  unprofessional 
practitioner  guilty  of  manslaughter  if  by  gross 
negligence,  inattention,  or  foolhardy  presmnption 
he  unintentionally  causes  the  death  of  his  patient. 
In  the  later  Massachusetts  case  of  Commonwealth 
v.  Pierce  (138  Mass.,  165)  which  criticises  the  case 
of  Commonwealth  v.  Thompson,  it  appeared  that 
the  prisoner  was  called  upon  to  attend  a  sick  woman 
confined  to  her  bed.  He  prescribed  that  her  cloth- 
ing should  be  kept  saturated  with  kerosene  oil. 


Criminal  Respoksibility  119 

This  was  done,  but  in  about  two  hours  the  de- 
fendant was  sent  for  again.  The  testimony  of  the 
husband  at  the  trial  was  that,  ^' On  his  (the  defend- 
ant's) arrival,  I  told  the  defendant  how  my  wife 
had  suffered  and  what  we  had  done;  she  said  it 
was  as  if  she  was  in  the  fire ;  he  replied  that  it  was 
doing  just  what  he  wanted,  like  a  poultice  on  a  boil, 
drawing  it  out;  that  it  was  her  only  salvation.  I 
told  him  she  would  not  bear  it,  and  asked  him  if 
he  would  try  to  persuade  her;  he  said  that  he  was 
too  tender-hearted,  that  it  was  my  wife  instead  of 
his;  I  then  talked  with  her  and  told  her  the  doc- 
tor said  it  would  not  hurt  so  much  the  next  time ; 
finally  she  said  if  he  would  stay  and  see  the  effect 
she  would  try  it,  and  I  so  reported  to  him  and  the 
flannels  were  saturated  and  replaced.  The  doc- 
tor remained  until  the  patient  fell  asleep.  She  did 
not  appear  to  suffer  so  much  as  before." 

This  treatment  was  kept  up  for  three  days  at 
the  direction  of  the  defendant.  The  evidence  tended 
to  show  the  effect  of  the  oil  was  to  bum  and  blister 
a  large  part  of  the  surface  of  the  body,  and  that 
the  oil  had  had  this  same  effect  prior  to  this  par- 
ticular treatment,  though  it  was  shown  that  in 
certain  instances  it  had  benefited  patients.  The 
defendant  continued  to  attend  the  woman  for  five 
days  and  then  other  help  was  summoned.  Two 
days  later  she  died. 

It  was  held  the  defendant  on  these  facts  could 
be  found  guilty  of  manslaughter,  because  in  order 
to  constitute  the  crime  of  manslaughter  where  there 


120  The  Doctoe  in  Coukt 

is  no  intent,  it  is  not  essential  that  tlie  killing  should 
be  the  result  of  an  illegal  act,  but  it  is  enough  if 
it  appears  that  death  was  due  to  gross  negligence 
or  foolhardy  presumption  of  the  defendant  judged 
by  the  external  criterion  of  the  ordinarily  prudent 
man  in  like  circumstances.  In  other  words,  if  the 
danger  of  an  act  is  obvious  to  the  jury,  the  failure 
or  inability  of  the  defendant  to  predict  conse- 
quences which  he  did  not  intend  or  foresee  is  un- 
materiaL  The  court  in  this  case  put  a  limitation 
upon  the  application  of  the  rule  to  cases  in  which 
there  are  no  exceptional  circumstances  or  sudden 
emergency  calling  upon  one  to  act  as  a  physician. 
The  unsoundness  of  the  earlier  American  view  is 
manifest.  For  surely  the  law  cannot  give  recogni- 
tion to  a  privilege  to  do  acts  manifestly  endanger- 
ing human  life  on  the  ground  of  good  intentions 
alone.  (See,  also.  State  v.  Hardister  &  Brown,  38 
Ark.,  605;  State  v.  Eeynolds,  42  Kansas,  320.) 

It  must  be  kept  in  mind  that  a  mere  error  or 
mistake  of  judgment  in  treating  a  patient  resulting 
in  the  patient's  death  does  not  render  the  physician 
amenable  to  the  criminal  law,  any  more  than  he  is 
civilly  responsible  for  a  mere  mistake  of  judgment. 
This  would  be  neither  murder  nor  manslaughter, 
but  misadventure.  So  where  a  physician  examines 
the  womb  of  one  of  his  patients  and  without  malice 
or  culpable  negligence  accidentally  inflicts  a  wound 
which  causes  the  patient 's  death,  he  is  not  guilty  of 
either  murder  or  manslaughter  ( State  v.  Reynolds, 
42  Kansas,  320;  see,  also,  State  v.  Hardister  & 


Criminal  Responsibility  121 

Brown,  38  Ark.,  605).  The  consent  of  the  patient 
to  the  treatment  or  operation  resulting  in  death  is 
no  defence  if  the  physician  does  not  use  due  care 
and  skill.  (State  v.  Gile,  8  Wash.,  12 ;  for  collection 
of  cases  upon  the  subject  of  negligent  homicide  by 
a  physician  see  note  in  61  Lawyers'  Eeports  An- 
notated, 287.) 

A  rather  interesting  defence  was  interposed  in 
a  murder  trial  in  New  Mexico  a  few  years  ago. 
The  principals  were  Chinese.  Yee  Dan  was  in- 
dicted for  the  murder  of  Yee  Yot  Woh,  who  was 
struck  upon  the  head  by  the  former  with  a  bar  of 
iron.  The  defence  introduced  evidence  that  after 
Yee  "Woh  had  been  taken  to  the  hospital  the  surgical 
operation  of  trepanning  was  performed  upon  his 
skull  in  such  a  manner  as  to  be  the  proximate  cause 
of  his  death.  In  explanation  of  the  unlooked-for 
result  it  was  shown  that  Yee  Yot  Woh's  skull  was 
abnormally  thin,  so  as  to  deceive  the  physician  who 
operated  and  cause  the  instrument  to  suddenly 
penetrate  the  brain.  There  was  an  autopsy  per- 
formed by  two  physicians.  One  of  these  physicians 
gave  the  following  testimony : 

*  ^  Q.  In  the  condition  that  you  found  this  oper- 
ation had  been  performed,  what,  in  your  opinion, 
would  have  been  the  effect  on  the  subject T' 

**A.  Well,  it  settled  all  his  chances  for  life.  It 
was  an  exceedingly  grave  injury.  In  addition  to 
the  one  received  by  the  blow,  it  put  beyond  all  hope 
any  recovery." 


122  The  Doctor  in  Court 

This  physician  upon  cross-examination  testified 
as  follows: 

*'Q.  But  in  this  instance  you  found  the  blood- 
clot  unusually  large?" 

^*A.  Yes,  sir." 

**Q.  And  very  compressed?" 

''A.  Yes,  sir." 

*'Q,  And  would  have  caused  death?" 

**  A.  Undoubtedly  the  hemorrhage  was  the 
proximate  cause  of  the  death ;  the  blow,  the  remote 
cause. ' ' 

"Q.  Even  under  the  care  of  a  more  skilful 
physician,  an  injury  to  the  brain  might  probably 
cause  death?" 

''A.  Yes,  sir;  it  is  a  very  grave  injury." 

The  testimony  of  the  other  physician  was  prac- 
tically the  same,  though  he  differed  upon  the  size 
of  the  blood-clot  and  though  there  was  some  possi- 
bility of  its  being  absorbed  except  for  the  oper- 
ation. The  prisoner  was  found  guilty  of  second 
degree  murder.  The  upper  court  held  that  under 
the  circumstances  where  an  apparently  necessary 
operation  was  resorted  to  in  order  to  save  the  de- 
ceased from  the  probable  fatal  result  of  the  wound, 
that  it  must  be  clearly  established  in  order  to  save 
the  prisoner  from  responsibility  that  the  improper 
treatment  of  the  wound  was  the  sole  cause  of  the 
death  and  not  the  wound  itself  (Territory  v.  Yee 
Dan,  7  New  Mexico,  439). 

The  necessity  for  one  charged  with  the  com- 


Ceiminal  Responsibility  123 

mission  of  a  crime  to  disclose  all  facts  to  his  legal 
advisers  was  most  forcibly  brouglit  out  in  the 
famous  case  of  Professor  Webster  of  the  Harvard 
Medical  School,  who  was  convicted  of  the  murder 
of  Dr.  Parkman.    The  evidence  was  circumstantial. 

Webster  was  a  chemistry  professor  in  the  Har- 
vard Medical  School.  It  was  proved  at  the  trial 
that  on  the  morning  of  November  23,  1849,  Dr. 
George  Parkman,  a  well  known  Boston  character, 
left  his  home  apparently  in  sound  health  and  in 
good  spirits;  that  about  nine  o'clock  the  same 
morning  Professor  Webster  had  left  word  at  Dr. 
Parkman 's  house  that  if  Dr.  Parkman  would  call 
at  the  medical  school  about  one  thirty  p.  m.,  he 
would  see  that  Dr.  Parkman  was  paid  certain  notes 
on  which  he  was  indebted  to  him;  that  Dr.  Park- 
man  was  last  seen  alive  by  witnesses  about  one- 
forty-five  p.  m.  that  day  when  he  was  going  toward 
and  about  to  enter  the  medical  school;  that  Dr. 
Parkman  never  returned  home,  and  the  next  day 
and  until  November  30,  search  was  made  in  Bos- 
ton and  vicinity  for  him,  but  in  vain.  Large  re- 
wards were  offered  for  information  leading  to  his 
whereabouts. 

In  an  assay  furnace  of  the  laboratory  of  the 
medical  school  on  November  30,  fragments  of  hu- 
man bones  were  found  and  some  false  teeth.  It 
was  proved  there  were  no  duplicate  parts  among 
the  bones  found;  that  these  remains  were  not  of 
a  dissected  body,  and  that  they  were  all  similar  to 
the  same  parts  of  Dr.  Parkman 's  body.    The  teeth 


124  The  DocTote  if  Court 

were  identified  as  belonging  to  Dr.  Parkman  by  the 
dentist  who  fitted  them  two  weeks  prior  to  his  dis- 
appearance. There  was  also  evidence  that  Pro- 
fessor Webster  said  he  had  had  an  interview  with 
Dr.  Parkman  in  the  laboratory  about  one-thirty 
p.  m.  the  day  of  Dr.  Parkman 's  disappearance. 
The  government  furthermore  showed  that  at  this 
time  Professor  Webster  did  not  have  the  means  to 
pay  the  notes  which  were  subsequently  found  in 
his  possession.  Professor  Webster  was  tried,  con- 
victed, and  hanged  (5  Gush.  (Mass.),  295).  His 
confession  was  made  public  after  his  death.  It 
showed  that  he  killed  Dr.  Parkman  suddenly  in 
the  heat  of  blood,  without  malice  aforethought,  by 
striking  him  with  a  stick  of  wood  which  was  used 
in  some  connection  with  the  laboratory.  In  fear  he 
had  attempted  to  dispose  of  the  body. 

If  Professor  Webster  had  disclosed  all  the  facts 
to  his  lawyers  he  would  in  all  probability  have 
saved  his  own  life.  The  lawyer  who  is  not  in 
possession  of  all  the  f'  ts  in  a  case  is  in  a  similar 
position  to  the  phys  jian  whose  patient  conceals 
facts  concerning  his  history  or  condition:  pro- 
pitious results  for  the  client  or  patient  as  the  case 
may  be  are  made  less  easy  of  attainment.  (Further 
authorities :  Vol.  22,  American  and  English  Ency- 
clopaedia of  Law,  pp.  810-811.) 


CHAPTER   VII 

QUAliIFICATIONS 

A  recurrence  to  history  shows  us  that  the  law 
has  for  hundreds  of  years  sternly  regulated  the 
practice  of  medicine  and  surgery  (3  Henry  VIII, 
Ch.  11,  passed  1511).  Yet  under  the  civil  law  of 
Eome  and  the  English  common  law  it  was  open  to 
all  desiring  to  practise  until  the  year  1422,  when  an 
act  confined  it  to  those  who  had  studied  in  a  uni- 
versity and  held  degrees.  Hippocrates  in  his  Law 
of  Medicine,  after  bewailing  the  low  state  of  the 
art  and  the  ignorance  of  the  practitioners  of  his 
time,  says,  ''Their  mistake  appears  to  me  to  arise 
principally  from  this,  that  in  the  cities  there  is 
no  punishment  connected" V^Hh  the  practice  of  medi- 
cine (and  with  it  alone)  t'"'ept  disgrace,  and  that 
does  not  hurt  those  who  are  familiar  with  it." 

It  was  King  Henry  VIII  who  granted  letters 
patent  incorporating  and  erecting  the  College  of 
Physicians  in  London,  with  power  to  elect  a  presi- 
dent and  make  by-laws  for  the  government  of 
all  practitioners  and  examine  the  medicines  and 
prescriptions,  and  punish  malpractices  by  fines, 
amerciaments,  and  imprisonments.  King  Henry 
VIII  also  constituted  the  company  of  Surgeons  and 

125 


126  The  Doctok  in  Court 

Barbers  and  prescribed  regulations  for  it,  but  in 
the  eighteenth  year  of  the  reign  of  King  George 
II  this  union  was  dissolved  and  regulations  made 
as  to  the  surgeons  of  London. 

The  basic  principle  of  medical  legislation  and 
the  reason  the  state  has  given  its  attention  to 
the  matter  is  apparent  immediately  we  think  of 
the  great  interests  with  which  the  profession  is 
charged.  It  has  given  to  its  care  the  welfare  of 
the  multitude.  Taking  the  maxim  that  ''preven- 
tion is  better  than  cure, ' '  the  various  states  have 
not  been  content  with  holding  the  members  of  the 
profession  resj)onsible  in  damages  for  negligence 
and  malpractice,  but  in  addition  to  this  remedy 
have  i^assed  laws,  preventive  in  their  nature,  de- 
signed to  protect  the  health  and  lives  of  the  peo- 
ple against  fraud  and  incompetency. 

The  court  of  last  resort  in  Ehode  Island  in 
speaking  of  a  statute  of  that  state  relating  to 
medical  licensure  said:  "The  object  of  the  statute 
in  question  is  to  secure  the  safety  and  protect  the 
health  of  the  public.  It  is  based  upon  the  as- 
sumption that  to  allow  incompetent  persons  to  de- 
termine the  nature  of  the  disease,  and  to  prescribe 
remedies  therefor,  would  result  in  injury  and  loss 
of  life.  To  protect  the  public,  not  from  theories, 
but  from  acts  of  incompetent  persons,  the  legis- 
lature has  prescribed  the  qualifications  of  those 
who  may  be  entitled  to  perform  the  important 
duties  of  medical  practitioners.  The  statute  is  not 
for  the  purpose  of  compelling  persons  suffering 


QuAIxLFICATIONS  127 

from  disease  to  resort  to  remedies,  but  is  designed 
to  secure  to  those  desiring  remedies  competent 
physicians  to  prepare  and  administer  them" 
(State  V.  Mylod,  20  E.  L,  632). 

Mr.  Justice  Field  of  the  Supreme  Court  of  the 
United  States  says,  "Few  professions  require 
more  careful  preparation  hy  one  who  seeks  to  enter 
it  than  that  of  medicine.  It  has  to  deal  with  all 
those  subtle  and  mysterious  influences  upon  which 
health  and  life  depend,  and  requires  not  only  a 
knowledge  of  the  properties  of  the  vegetable  and 
mineral  substances,  but  the  human  body  in  all 
its  complicated  parts  and  their  relation  to  eacn 
other,  as  well  as  their  influence  upon  the  mind. 
The  physician  must  be  able  to  detect  readily  the 
presence  of  disease,  and  prescribe  appropriate 
remedies  for  its  removal.  Eveiy  one  may  have 
occasion  to  consult  him,  but  comparatively  few  can 
judge  of  the  qualifications  of  learning  and  skill 
which  he  possesses.  Reliance  must  be  placed  upon 
the  assurance  given  by  his  license,  issued  by  an 
authority  competent  to  judge  in  that  respect,  that 
he  possesses  the  requisite  qualifications.  Due  con- 
sideration therefor,  for  the  protection  of  society 
may  well  induce  the  State  to  exclude  from  practice 
those  who  have  not  such  a  license,  or  are  found 
upon  examination  not  to  be  fully  qualified"  (Dent 
v.  State  of  West  Virginia,  129  U.  S.,  114). 

The  right  of  the  State  to  regulate  the  practice 
of  medicine  and  surgery  has  been  repeatedly  at- 
tacked on  every  conceivable  legal  ground.    A  per- 


128  The  Doctor  in  Couet 

son,  however,  is  not  bom  with  the  right  to  prac- 
tise any  more  than  he  is  horn  with  the  right  to  vote. 
In  other  words  there  is  no  vested  right  to  practise 
the  medical  profession  free  from  supervision  by 
the  state  (Reetz  v.  Michigan,  188  U.  S.,  505).  The 
Supreme  Court  of  Iowa  has  gone  so  far  as  to  call 
it  the  exercise  of  a  ''privilege"  (State  v.  Ed- 
munds, 127  Iowa,  333),  yet  in  the  absence  of  any 
law  prescribing  qualifications  a  person  would  have 
the  right  to  practise  medicine. 

Among  the  many  arguments  against  such  stat- 
utes it  has  been  urged  that  laws  of  this  kind  are 
unwise,  and  in  support  of  this  contention  Herbert 
Spencer  is  cited.  It  is  v»^orth  remarking  that  in  his 
'  *  Social  Statics ' '  Spencer  claims  there  are  no  good 
reasons  why  the  principles  of  free  trade  should 
not  be  applied  to  the  practice  of  medicine.  He 
says,  "All  measures  which  tend  to  put  ignorance 
upon  a  par  with  wisdom  inevitably  check  the 
growth  of  wisdom.  Acts  of  Parliament  to  save 
silly  people  from  the  evir  which  putting  faith  in 
empirics  may  entail  on  them  do  this,  and  are  there- 
fore bad.  It  is  best  to  let  the  foolish  man  suffer 
the  penalty  of  his  foolishness.  For  the  pain,  he 
must  bear  it  as  he  can ;  for  the  experience,  he  must 
treasure  it  up,  and  act  more  rationally  in  the 
future.  To  others,  as  well  as  to  himself,  will  his 
case  be  a  warning.  And  by  multiplication  of  such 
warnings  there  cannot  fail  to  be  generated  a  cau- 
tion corresponding  to  the  danger  to  be  shunned" 
(Social  Statics,  205;  see  Thompson  v.  Van  Lear, 


Qualifications  129 

77  Ark.,  506;  5  L.  R.  A.  (N.  S.),  588;  7  Am.  Cas., 
154). 

Notwithstanding  this  and  the  many  provisions 
of  the  federal  and  state  constitutions  which  these 
statutes  are  said  to  violate,  the  various  States  have 
passed  statutes  regulating  the  matter,  such  stat- 
utes being  justified  under  the  police  power  of 
the  state.  ' '  This  police  power  of  the  state, ' '  says 
Chief  Justice  Redfield  of  the  Vermont  court 
(Thorpe  v.  R.  &  B.  R.  Co.,  27  Vt.,  140),  ''extends 
to  the  protection  of  the  lives,  limbs,  health,  com- 
fort, and  quiet  of  all  persons."  In  Dent  v.  State 
of  West  Virginia  (129  U.  S.,  114)  the  Supreme 
Court  of  the  United  States  said:  ''The  power  of 
the  state  to  provide  for  the  general  welfare  of  its 
people  authorizes  it  to  prescribe  all  such  regula- 
tions as,  in  its  judgment,  will  secure,  or  tend  to 
secure,  them  against  the  consequences  of  igno- 
rance and  incapacity  as  well  as  of  deception  and 
fraud.  As  one  means  to  this  end,  it  has  been  the 
practice  of  different  States,  from  time  immemorial, 
to  exact  in  many  pursuits  a  certain  degree  of  skill 
and  learning,  upon  which  the  community  may  con- 
fidently rely." 

This  police  power  it  must  be  understood  is  an 
inherent,  inalienable  right  of  every  State.  That 
great  piece  of  statutory  law,  the  federal  constitu- 
tion, is  a  document  of  enumerated  powers.  All 
powers  not  expressly  given  therein  by  the  States 
to  the  national  government  are  deemed  to  have 
been  kept  by  the  States;  and  therefore  it  is  re- 


130  TSE  DoCTOE  IN   COUET 

served  to  the  several  States  to  pass  laws  protecting 
the  lives  and  health  of  the  community  against  a 
citizen  exercising  his  rights  in  a  manner  tending 
to  injure  the  community.  In  the  words  of  Chief 
Justice  Rugg  of  the  Supreme  Judicial  Court  of 
Massachusetts,  '  *  The  maintenance  of  a  high  stand- 
ard of  professional  qualifications  for  physicians  is 
of  vital  concern  to  the  puhlic  health,  and  reason- 
able regulations  to  this  end  do  not  contravene  any 
provisions  of  the  state  or  federal  constitutions" 
(Commonwealth  v.  Porn,  196  Mass.,  326). 

The  right  or  power  of  the  state  to  make  reason- 
able provisions  for  determining  the  qualifications 
of  those  engaging  in  medical  practice,  and  punish- 
ing those  who  attempt  to  engage  therein  in  defiance 
of  such  statutory  provisions  is  no  longer  an  open 
question,  but  well  settled  law  (Dent  v.  State  of 
West  Virginia,  129  U.  S.,  114;  People  v.  Phippin, 
70  Mich.,  6;  Gosnell  v.  State,  52  Ark.,  228;  People 
V.  Hasbrouck,  11  Utah,  291 ;  State  v.  Wilcox,  64 
Kansas,  789;  State  v.  Edmunds,  127  Iowa,  333; 
State  V.  Call,  121  N.  C,  643;  Hawker  v.  New 
York,  170  U.  S.,  189;  Foster  v.  Police  Commis- 
sioners, 102  Cal.,  483;  see  note  in  14  Lawyers' 
Eeports  Annotated,  579). 

Hardly  a  State  has  failed  to  use  its  power  to 
regulate  the  practice  of  medicine  and  surgery  by 
prescribing  qualifications  a  candidate  or  applicant 
must  possess  as  a  condition  precedent  to  his  secur- 
ing a  license.  There  being  no  distinction  between 
the  power  to  revoke  and  the  power  to  grant  a 


QuALIFICATIOiTS  13l 

license,  the  statutes  usually  give  to  the  board  or 
tribunal  before  which  one's  qualifications  are  ap- 
proved or  disapproved  the  power  to  revoke  licenses 
for  cause.  In  other  words  both  revocation  and 
granting  of  licenses  are  exercise  of  the  state's 
police  power.  Eevocation  is  protection,  not  pun- 
ishment. 

While  it  has  been  held  that  a  statute  which 
authorized  a  State  board  to  revoke  a  certificate  for 
dishonorable  conduct  and  making  grossly  improb- 
able statements  is  void  as  being  indefinite  and  un- 
certain (Hewitt  V.  State  Board,  148  Cal.,  590),  the 
weight  of  authority  seems  to  be  contra  to  this 
and  is  to  the  effect  that  it  would  be  well  nigh  im- 
possible for  the  legislature  to  catalogue  all  the 
acts  for  which  one's  license  might  become  forfeit 
(Macomber  v.  Board  of  Health,  28  R.  I.,  3 ;  Alton 
V.  Medical  Examiners,  13  Ariz.,  354). 

Since  the  medical  statutes  find  their  justifica- 
tion under  the  police  power  or  the  right  of  the 
state  to  frame  laws  regarding  the  public  health, 
we  find  these  practice  acts  among  the  laws  of  the 
various  States.  They  are,  then,  like  our  divorce 
laws,  by  no  means  uniform.  For  this  reason,  it 
is  impossible  to  make  here  an  extended  and  ex- 
haustive examination  of  these  statutes  and  the 
legion  of  decisions  handed  down  by  the  different 
State  courts  interpreting  them.  It  is  manifest  that 
many  such  decisions  have  application  only  to  the 
statute  of  a  particular  State  and  are  not  therefore 
of  universal  interest  or  relevancy.    So  we  must 


132  The  Doctor  in  Court 

needs  limit  ourselves  here  to  a  consideration  of 
the  cases  decided  nnder  sections  of  the  statutes 
conunon  to  all  the  statutes.  Those  having  occasion 
to  look  into  the  qualifications  of  medical  licensure 
in  a  given  State  may  consult  the  practice  act  of 
that  State.  The  contents  of  the  different  acts  are 
familiar  to  the  profession.  (For  all  ordinary  pur- 
poses reference  may  be  had  to  the  abstract  of  these 
laws  issued  by  the  American  Medical  Association.) 
Now,  the  criminal  prosecutions  under  the  prac- 
tice acts  for  the  illegal  practice  of  medicine  and 
surgery  have  caused  many  technical  points  for 
judicial  construction  to  be  raised.  The  Supreme 
Court  of  Rhode  Island  has  this  to  say  of  the  term 
** medicine*'  in  respect  of  the  subject  in  connection 
with  which  it  is  used.  ''Medicine,  in  the  popular 
sense',  is  a  remedial  substance.  The  practice  of 
medicine,  as  ordinarily  or  popularly  understood, 
has  relation  to  the  art  of  preventing,  curing, 
or  alleviating  disease  or  pain.  It  rests  largely  in 
the  science  of  anatomy,  physiology,  and  hygiene; 
it  requires  a  knowledge  of  disease,  its  origin,  its 
anatomical  and  physiological  features,  and  its 
causative  relations;  and  further,  it  requires  a 
knowledge  of  drugs,  their  preparation  and  action. 
Popularly  it  consists  in  the  discovery  of  the  cause 
and  nature  of  disease,  and  the  administration  of 
remedies  or  the  prescribing  of  treatment  there- 
for" (State  V.  Mylod,  20  R.  I.,  632).  Words  of 
any  statute  are  taken  in  their  natural  meaning 
provided  such  words  are  of  common  use.    Subtlo 


Qualifications  133 

and  forced  constmctions  are  not  tolerated  by  the 
law  unless  such  words  if  taken  in  their  natural 
meaning,  would  be  senseless. 

There  is  a  great  number  of  cases  where  un- 
licensed persons  have  rendered  services  of  a  med- 
ical or  surgical  character  and  seek  to  evade  re- 
sponsibility by  claiming  they  do  not  come  under 
the  statute.  As  to  what  constitutes  the  practice 
of  medicine  within  the  meaning  of  the  various  acts, 
it  may  be  said  that  many  of  the  statutes  give  defini- 
tions and  the  cases  of  those  who  claim  not  to  be 
covered  by  the  statutes  show  an  inclination  by  the 
courts  to  stretch  the  jurisdiction  of  the  statutes  to 
all  methods  of  treatment.  (The  New  York  statute 
on  this  point  reads  as  follows :  * '  §  7.  The  practice 
of  medicine  is  defined  as  follows :  A  person  prac- 
tises medicine  within  the  meaning  of  this  act,  ex- 
cept as  hereinafter  stated,  who  holds  himself  out 
as  being  able  to  diagnose,  treat,  operate,  or  pre- 
scribe, for  any  human  disease,  pain,  injury,  de- 
formity, or  physical  condition,  and  who  shall  either 
offer  or  undertake,  by  any  means  or  method,  to 
diagnose,  treat,  operate,  or  prescribe  for  any  hu- 
man disease,  pain,  injury,  deformity,  or  physical 
condition."    L.  1907,  Ch.  34.) 

Thus  it  has  been  held  that  one  who  practises 
' '  bonesetting  and  reducing  sprains,  swellings  and 
contraction  of  the  sinews  by  friction  and  fomenta- 
tion, but  no  other  branch  of  the  healing  art ' '  comes 
within  the  provisions  of  a  statute  prohibiting  one 
practising  physic  or  surgery  from  recovering  a  fee 


134  The  Doctor  in  Court 

without  first  complying  with  the  law  relating  to 
licensure  (Hewitt  v.  Charier,  16  Pick.^  353),  So 
one  who  practises  as  a  clairvoyant  has  been  con- 
sidered as  rendering  medical  services  within  the 
meaning  of  an  act  providing  for  licensing  persons 
performing  medical  services. 

Said  the  court:  ''The  services  rendered  were 
medical  in  their  character.  True,  the  plaintiff  does 
not  call  herself  a  physician,  but  she  visits  her  sick 
patients,  examines  their  condition,  determines  the 
nature  of  the  disease,  and  prescribes  the  remedies 
deemed  by  her  appropriate.  Whether  the  plaintiff 
calls  herself  a  medical  clairvoyant,  or  a  clairvoyant 
physician,  or  a  clear-seeing  physician,  matters  lit- 
tle ;  assuredly,  such  services  as  the  plaintiff  claims 
to  have  rendered  purport  to  be  and  are  to  be 
deemed  medical"  (Appleton,  C.  J.,  in  Bibber  v. 
Simpson,  59  Me.,  181). 

In  the  case  of  Commonwealth  v.  Pom  (196 
Mass.,  326)  the  complaint  charged  that  the  de- 
fendant ''did  practise  medicine"  and  "held  her- 
self out  as  a  practitioner  of  medicine ' '  contrary  to 
the  statute.  It  appeared  that  she  was  unlicensed 
and  while  she  did  not  claim  to  be  a  general  prac- 
titioner of  medicine  yet  held  herself  out  as  a  mid- 
wife. She  delivered  many  women  in  childbirth 
for  a  fee,  and  it  also  appeared  that  she  carried 
with  her  when  attending  patients  the  customary 
obstetrical  instruments,  though  she  used  these  but 
rarely  and  then  only  when  a  physician  was  beyond 
call.     She  also  prescribed  for  certain  conditions 


Qualifications  135 

in  accordance  with  the  directions  of  six  printed 
formulas.  The  court  held  these  facts  constituted 
the  practice  of  medicine  as  intended  by  the  stat- 
ute. The  defendant  could  therefore,  it  was  held, 
be  found  guilty  of  a  violation  of  the  law. 

The  court  said  that  although  childbirth  is  not 
a  disease,  but  a  normal  function  of  women,  never- 
theless the  practice  of  medicine  does  not  appertain 
exclusively  to  disease,  and  obstetrics  as  a  matter 
of  common  knowledge  has  for  a  long  time  been 
treated  as  a  highly  important  branch  of  the  science 
of  medicine.  In  another  case  in  Massachusetts  it 
was  contended  that  a  person  could  not  be  found 
guilty  of  the  violation  of  a  statute  prohibiting  one 
from  practising  medicine  without  prescribing  or 
dealing  out  a  substance  used  as  a  remedy  for  dis- 
ease, but  the  court  did  not  take  this  view  of  the 
matter  as  it  considered  it  too  narrow. 

''The  science  of  medicine,"  the  opinion  reads, 
*  *  that  is,  the  science  which  relates  to  the  prevention, 
cure  or  alleviation  of  disease,  covers  a  broad  field, 
and  is  not  limited  to  that  department  of  knowledge 
which  relates  to  the  administration  of  medicinal 
substance.  It  includes  a  knowledge,  not  only  of  the 
functions  of  the  organs  of  the  human  body,  but  also 
of  the  diseases  to  which  these  organs  are  subject, 
and  of  the  laws  of  health  and  the  modes  of  living 
which  tend  to  avert  or  overcome  disease,  as  well 
as  of  specific  methods  of  treatment  that  are  most 
effective  in  promoting  cures"  (Commonwealth  v. 
jewelle,  199  Mass.,  558). 


136  The  Doctor  in  Court 

So  also  it  has  been  held  that  one  who  practises 
osteopathy,  which  as  a  science  or  art  includes  the 
diagnosis  and  treatment  of  disease,  comes  within 
the  purview  of  a  statute  making  it  illegal  to  prac- 
tise medicine  or  surgery  without  first  obtaining  a 
certificate  of  qualification  from  the  duly  authorized 
board  of  examiners  (Bragg  v.  State,  134  Ala.,  165). 
The  defence  in  many  prosecutions  for  practising 
osteopathy  is  that  no  drugs  nor  other  medicinal 
substances  were  administered  nor  applied  internal- 
ly, nor  was  any  form  of  surgery  resorted  to  in  the 
treatment  of  disease.  Therefore,  it  is  argued,  an 
osteopath  does  not  come  within  certain  statutory 
provisions.  The  availability  of  such  a  defence  de- 
pends largely  upon  the  phraseology  of  the  statute 
under  which  the  prosecution  takes  place.  Thus  it 
has  been  held  that  the  term  '^ medicine"  as  used 
in  a  statute  pertaining  to  the  regulation  of  medical 
practice  had  a  technical  meaning,  and  as  a  science 
its  followers  were  not  merely  those  who  prescribed 
drugs  or  other  remedial  agents,  but  included  prac- 
titioners of  osteopathy  who  diagnosed  and  treated 
disease  by  a  certain  method  (Bragg  v.  State,  134 
Ala.,  165). 

On  the  other  hand  it  has  been  held  that  one  who 
practises  osteopathy  is  not  within  such  a  statute, 
the  court  saying,  '^  Medicine  is  an  experimental, 
not  an  exact  science.  All  the  law  can  do  is  to  reg- 
ulate and  safeguard  the  use  of  powerful  and  dan- 
gerous remedies,  like  the  knife  and  drugs,  but  it 
cannot  forbid  dispensing  with  them.     ^Vhen  the 


Qualifications  137 

Master,  who  was  Himself  called  tlie  Good  Phy- 
sician, was  told  that  other  than  his  followers  were 
casting  out  devils  and  curing  diseases,  He  said: 
'Forbid  them  not'  "  (State  v.  Biggs,  133  N.  C, 
729).  What  has  been  said  of  osteopathy  is  like- 
wise true  of  Christian  Science. 

The  lack  of  uniformity  in  the  texts  of  the  stat- 
utes has  given  birth  to  decisions  diametrically  op- 
posed to  each  other  in  the  conclusions  reached,  and 
it  follows  that  many  of  these  decisions  are  only  of 
local  importance,  having  been  decided  under  pro- 
visions of  practice  acts  differing  materially  from 
the  corresponding  provisions  of  practice  acts  of 
other  States.  In  some  States  express  provision  is 
made  by  statute  for  practitioners  of  osteopathy 
and  Christian  Science.  It  should  be  noted  here 
that  generally  speaking  all  cases  of  practising  med- 
icine and  surgery  under  the  acts  mean  practising 
for  compensation. 

Despite  the  fact  that  many  of  the  statutes  ex- 
pressly prohibit  the  use  of  any  title,  word,  letter 
or  designation  intending  to  imply  or  designate  a 
person  as  a  practitioner  of  medicine  or  surgery,  yet 
it  has  been  held  that  in  the  absence  of  a  provision 
to  this  effect  one  may  lawfully  assume  the  title 
''doctor"  (State  v.  Mylod,  20  R.  L,  632).  In  State 
V.  Heath  (125  Iowa,  585)  Mr.  Justice  Ladd  said: 
"It  is  doubtless  true  a  mere  public  profession  of 
an  ability  to  heal  would  not  subject  any  one  to  the 
penalties  of  the  law.  Such  profession  must  be 
made  under  such  circumstances  as  to  indicate  that 


138  The  Doctor  in  Couet 

it  is  made  with  a  view  of  undertaking  to  cure  the 
afflicted."  Where  a  person  kept  an  office  over  the 
door  of  which  was  a  sign,  ' '  Dr.  Phippin,  Magnetic 
Healer,"  and  several  persons  visited  him,  receiv- 
ing treatment,  it  was  held  this  constituted  a  holding 
out  as  a  physician  in  violation  of  law  (People  v. 
Phippin,  70  Mich.,  6). 

In  another  case  where  the  evidence  showed  that 
the  defendant  held  himself  out  as  a  magnetic  healer 
styling  himself  ''Professor,"  yet  was  not  a  grad- 
uate of  a  medical  school  and  had  no  license,  but 
treated  a  patient  for  a  lame  ankle,  diagnosed  as 
rheumatism,  the  treatment  consisting  in  rubbing, 
and  holding  the  ankle,  for  which  treatment  he 
charged  one  dollar,  it  was  held  that  this  evidence 
was  sufficient  to  show  the  defendant  guilty  of  prac- 
tising medicine  (Parks  v.  State,  159  Ind.,  211). 

But  where  one  advertised  himself  as  a  famous 
eye  expert  and  extended  an  invitation  to  all  per- 
sons with  certain  defects  of  vision  to  have  glasses 
fitted,  yet  did  not  treat  or  prescribe  for  disease  or 
deformities,  it  was  held  that  even  though  his  glasses 
had  relieved  and  cured  eye  trouble,  he  did  not  pro- 
fess to  practise  medicine  and  surgery  within  the 
meaning  of  the  statute  (People  use  of  Board  of 
Health  v.  Smith,  208  111.,  31). 

In  Witty  V.  State  (173  Ind.,  404)  the  defendant 
advertised  himself  as  a  graduate  of  a  school  of 
suggestive  therapeutics.  He  was  unlicensed  and 
in  his  advertisement  stated,  ''Every  known  dis- 
ease cured  without  medicine  or  surgery. ' '    He  an- 


Qualifications  139 

nounced  himself  as  a  specialist  in  all  chronic  dis- 
eases, mentioning  a  long  list  of  diseases  which  re- 
sponded readily  to  his  treatment.  His  treatment 
consisted  in  rubbing  the  afflicted  parts.  For  such 
treatment  he  charged  a  fee.  He  was  held  respon- 
sible for  practising  medicine  without  complying 
with  the  law. 

The  sale  of  patent  medicines  is  not  unlawful, 
but  where  an  unlicensed  person  claimed  to  be  a  phy- 
sician, held  himself  out  to  the  world  as  such,  ex- 
amined a  patient  who  had  requested  his  services 
and  then  diagnosed  the  disease,  fixed  the  amount 
of  compensation  and  gave  the  patient  a  prescrip- 
tion, it  was  held  that  he  could  not  evade  the  law 
by  proving  that  the  medicine  was  a  proprietary 
remedy  prepared  and  sold  by  him  (State  v.  Van 
Doran,  109  N.  C,  864). 

It  has  also  been  decided  that  where  one  pre- 
scribed or  administered  something  which  he  claimed 
was  good  for  the  alleviation  of  pain  or  the  cure 
of  disease,  the  fact  that  what  he  so  administered 
did  not  have  the  remedial  qualities  he  claimed  for 
it,  would  be  unavailing  as  a  defence,  inasmuch  as 
the  statute  was  intended  to  protect  the  community 
from  ^raud  and^ratiBCce  (State  v.  Heffeman,  28 
R.  L,  20). 

In  Payne  v.  State  (112  Tenn.,  588)  a  person 
engaged  in  advertising  a  patent  medicine  by 
speeches  to  a  crowd  gathered  in  the  open  air  said 
in  his  harangue  that  if  a  sufferer  with  a  stiff  neck 
or  joint  or  hand,  headache,  neuralgia  or  rhemna- 


140  The  Doctor  in  Court 

tism  would  come  onto  the  platform  he  would  guar- 
antee to  cure  such  person  in  five  minutes  with  his 
liniment.  He  would  then  treat  any  person  coming 
upon  the  stage.  To  one  person  he  said  his  medi- 
cine was  good  for  nervousness  and  stomach  trouble 
and  that  person  thereupon  bought  a  bottle.  He 
also  said  that  directions  were  on  the  bottle  and  a 
patient  could  gTaduate  a  dose  according  to  the 
needs  of  his  case.  He  gave  other  directions  re- 
garding diet.  On  this  evidence  he  was  found  guilty 
of  practising  medicine  contrary  to  law. 

A  very  recent  case  of  interest  in  Arkansas 
doubted  the  right  of  the  legislature  of  that  State 
to  pass  a  law  prohibiting  physicians  from  soliciting 
patients  by  paid  agents.  The  court  held  that  such 
a  statute  is  not  void,  but  justified  under  the  police 
power.  The  court  said,  inter  alia:  ''Counsel  for 
the  plaintiff  quotes  Oliver  Wendell  Holmes  as  say- 
ing that,  'if  the  whole  materia  medica  was  sunk 
to  the  bottom  of  the  sea,  it  would  be  all  the  better 
for  mankind  and  all  the  worse  for  the  fishes. '  We 
do  not  dispute  that  statement,  for  there  may  be 
some  truth  in  it;  and  it  is  possible  that  the  legis- 
lature had  something  of  the  kind  in  mind  when  it 
passed  this  act.  It  may  have  thought  that  people 
are  too  much  inclined  to  imagine  themselves  in  ill 
health,  too  prone  to  consult  doctors  and  take  medi- 
cine anyway,  without  being  urged  to  do  so  by  hired 
agents. 

"If  it  is  true,  as  the  'eminent  medical  author- 


Qualifications  141 

ity'  quoted  by  counsel  says,  Hhat  out  of  tw-enty- 
four  serious  cases  of  disease  three  could  not  be 
cured  by  the  best  remedies,  three  others  might  be 
benefited,  and  the  rest  would  get  well  anyway.' 
If  this  be  true,  is  it  not  better  as  a  rule  to  '  throw 
physic  to  the  dogs,'  and  let  nature  take  her  course f 
Now,  it  is  probable  the  conscientious  physician 
would  give  that  advice  to  his  patient  in  a  case 
where  he  needed  no  medicine. 

*'But  it  is  not  likely  a  physician  would  hire  an 
agent  to  drum  up  patients  for  him,  only  to  say  to 
them :  *  Go  thy  way ;  thou  dost  not  need  a  physician. ' 
A  physician  who  has  secured  a  patient  by  means 
of  a  hired  agent  has  paid  out  a  certain  sum  to 
obtain  his  patient,  and  is  under  a  strong  tempta- 
tion to  put  him  through  a  course  of  treatment, 
whether  he  needs  it  or  not,  in  order  to  get  his 
money  back  and  make  a  profit  on  his  investment. 
And  therein  lies  a  danger  to  the  public  from  such 
practice.  When  a  physician  obtains  a  patient  in  that 
way,  he,  in  effect,  buys  them,  just  as  if  he  said  to 
the  agent,  'I  will  pay  you  a  certain  sum  for  every 
patient  you  send  me ; '  or,  'I  will  pay  you  a  certain 
fee  out  of  the  money  I  receive  from  each  patient 
you  send  me.' 

**Now,  we  do  not  think  prudent  people  would 
wish  to  submit  to  the  advice  of  a  physician  who 
had  paid  out  money  to  get  them  under  his  treat- 
ment. To  be  successful,  the  agent  would  neces- 
sarily have  to  keep  his  interest  in  the  transaction 


142  The  Doctor  in  Couet 

secret  from  the  patient;  and  it  can  be  easily  seen 
that  such  a  method  of  securing  patients  would  very 
often  result  in  imposition  and  fraud  on  the  patient, 
and  in  inducing  many  people  to  take  treatment 
who  did  not  need  it"  (Thompson  v.  Van  Lear,  77 
Ark.,  506;  5  L.  R.  A.  (N.  S.),  588). 

Resume. — The  conservation  of  the  public  health 
has  caused  the  legislatures  of  the  various  States  to 
act  upon  the  supposed  necessity  of  restricting  med- 
ical practice.  This  is  vindicated  under  the  police 
power  of  the  state.  The  individual  right  is  sub- 
ordinated to  the  public  weal.  As  long  as  the  nat- 
ure and  extent  of  the  qualifications  required  are 
appropriate  to  the  profession  and  are  attainable 
by  reasonable  study  or  application  and  are  not 
arbitrary  and  capricious,  their  stringency  or  diffi- 
culty is  immaterial.  The  provisions  and  regula- 
tions of  the  statutes  are  enforceable  in  the  usual 
mode  established  with  regard  to  kindred  matters, 
with  proceedings  adapted  to  the  nature  of  the  case, 
which  need  not  necessarily  be  court  proceedings. 
No  attempt  has  been  made  here  to  review  the  vari- 
ous grounds  upon  which  these  statutes  are  said  to 
contravene  State  and  federal  constitutions.  Nor 
have  we  like  a  chemist  in  his  laboratory  with  cru- 
cible and  test-tube,  attempted  to  find  the  constit- 
uent elements  and  make  a  critical  analysis  of  these 
statutes.  (See  Part  II  of  Medical  Law,  by  J.  W. 
Wilcock,  containing  Acts  of  Parliament;  Statutes 
Regulating   Medical    Practice,   by   Lewis   Hoch- 


QuAliIFICATIONS  143 

heimer,  Vol.  61,  Central  Law  Journal,  428;  Vol. 
39,  American  Digest  (Century  Edition),  title,  Phy- 
sicians and  Surgeons,  §  §  1-15 ;  Vol.  30,  Cyclopaedia 
of  Law  and  Procedure,  pp.  1547-1570;  American 
and  English  Encyclopedia  of  Law,  Vol.  22,  pp. 
780-788.) 


SUPPLEMENT 

Note. — The  requirement  for  a  farther  print- 
ing of  this  book  has  induced  the  writer  to  an- 
notate the  various  chapters  by  reference  to  the 
latest  adjudicated  cases,  to  add  topics  not  pre- 
viously included,  and  to  extend  the  discussion  of 
some  points  already  considered.  Among  the  new 
decisions,  notation  has  been  made  only  of  those 
cases  that  announce  some  new  principle  of  law, 
or  show  a  new  application  or  furnish  good 
illustrative  instances  of  the  general  principles 
previously  set  forth. 

E.  V.  M. 

Univeesity  of  South  Dakota. 


145 


ANNOTATIONS   TO   CHAPTER  I 

PROFESSIONAL  EVIDENCE 

The  Examination  of  Expert  Witness.  —  By- 
way of  recapitulation,  and  in  extension  of  what 
has  been  said  already  npon  the  principles  of  evi- 
dence affecting  the  admission  of  expert  testimony, 
the  qualifications  of  the  professional  witness,  and 
his  examination  in  court,  the  follo\\Tjig  analytic 
sjmopsis  is  given  to  set  out  the  matter  in  clearer 
relief. 

When  a  witness  is  offered  as  an  expert,  three 
questions  necessarily  arise : 

(1)  Is  the  subject  concerning  which  he  is 
to  testify  one  upon  which  the  opinion  of  an 
expert  can  be  received? 

(2)  What  are  the  qualifications  necessary 
to  entitle  a  witness  to  testify  as  an  expert? 

(3)  Has  the  witness  those  qualifications?  * 

1.  The  subject  is  one  upon  which  the  expert's 
opinion  is  admissible  in  evidence — 

(a)  When  it  is  such  that  inexperienced 
persons  are  not  likely  to  prove  capable  of 
forming  a  correct  judgment  upon  it  without 
such  aid. 

1  Jones  V.  Tucker,  41  N.  H.,  547. 
147 


148  The  Doctor  in  Court 

(6)  When  the  subject-matter  of  the  in- 
quiry is  within  the  range  of  the  peculiar  skill 
and  experience  of  the  witness.^ 

2.  No  definite  standard  can  be  set  up  as  to  the 
qualifications  essential  for  a  witness  to  possess 
before  he  will  be  accepted  as  an  expert,  the  mat- 
ter resting  in  the  fair  discretion  of  the  court. 
The  question  may  be  determined  by  considering — 

(a)  The  witnesses'  education  and  study  of 
the  authorities. 

(6)  The  witnesses'  experience  and  prac- 
tice. 

3.  The  capacity  of  the  witness  may  be  ascer- 
tained and  tested — 

(a)  By  his  own  testimony. 
(&)  By  the  testimony  of  others, 
(c)  By  cross-examination. 

There  are  four  ways  in  which  the  expert  may 
give  his  opinion: 

(1)  If  the  testimony  introduced  is  uncon- 
flicting  and  has  been  heard  by  the  witness, 
he  may  base  his  opinion  upon  it  without  the 
question  being  put  to  him  hypothetically. 

(2)  If  the  facts  are  personally  known  and 
testified  to  by  the  witness  himself,  he  may 
base  his  opinion  upon  such  facts.  There 
would  be  no  necessity  under  such  circum- 

2  Wharton's  Crim.  Evid.,  Sec.  403b;  Rogers'  Exp.  Test.,  p.  18. 


Annotations  to  Chapter  I  149 

stances  of  having  the  question  framed  hypo- 
thetically. 

(3)  His  opinion  may  be  based  upon  a 
hypothetical  question  founded  upon  the  facts 
admitted  or  proved  and  assumed  to  be  true. 

(4)  His  opinion  may  be  based  upon  a  com- 
bination of  the  facts  personally  known  to 
him  and  those  assumed  in  the  hypothesis. 

The  more  important  rules  regulating  the  ex- 
amination of  ■s^4tnesses  in  general  are  summed 
up  by  Rogers^  upon  the  authority  of  Greenleaf, 
Taylor,  Wharton,  and  Stephen,  as  follows: 

*'I.  Evidence  should  be  confined  to  the  points 
in  issue,  and  evidence  of  collateral  facts  which 
are  incapable  of  affording  any  reasonable  pre- 
sumption as  to  the  principal  matter  in  dispute 
should  not  be  received. 

(a)  Evidence  of  collateral  facts  may,  how- 
ever, be  received  where  the  question  is  a 
matter  of  science,  and  where  the  facts  proved, 
though  not  directly  in  issue,  tend  to  illustrate 
the  opinions  of  scientific  witnesses. 

*'IL  Leading  questions  should  not  be  asked 
on  the  direct,  but  may  be  asked  upon  the  cross- 
examination  of  a  witness. 

{a)  The  above  rule  may  be  relaxed  when 
made  necessary  by  the  complicated  nature  of 

sEogers' Exp.  Test,  pp.  51-53. 


150  The  Doctor  in  Court 

the  matter  concerning  which  the  witness  is 
interrogated. 

(fc)  And  the  rule  does  not  apply  when  the 
witness  appears  to  be  hostile  to  the  party 
producing  him. 

*'III.  In  England  the  rule  is  that  the  examina- 
tion and  cross-examination  of  a  witness  must 
relate  to  the  facts  in  issue,  or  relevant  or  deemed 
to  be  relevant  thereto,  while  the  re-examination 
must  be  directed  to  an  explanation  of  the  matters 
referred  to  in  the  cross-examination.  But  in  this 
country  the  weight  of  authority  is  said  to  be  in 
favor  of  confining  the  cross-examination  of  the 
witness  to  the  facts  testified  to  in  chief. 

"IV.  On  the  cross-examination,  a  witness 
may  be  asked  any  question,  (1)  to  test  his  ac- 
curacy, veracity  or  credibility,  or,  (2)  to  shake 
his  credit  by  injuring  his  character.  And  he  may 
be  compelled  to  answer  the  same,  unless  such 
answer  would  tend  to  criminate  himself. 

**V.  If,  on  the  cross-examination,  a  witness  is 
asked  a  question  which  is  relevant  only  in  that 
it  may  tend  to  shake  his  credit  by  injuring  his 
character,  his  answer  cannot  be  contradicted  un- 
less, (1)  he  has  denied  facts  tending  to  show  that 
he  is  not  impartial,  or,  (2)  he  has  been  asked  and 
has  denied  or  refused  to  answer  whether  he  has 
been  convicted  of  some  criminal  offence. 

"yi.  On  cross-examination,  a  witness  may  be 


Al^TITOTATIONS   TO    ChAPTEE   I  151 

asked  as  to  any  former  statements  which  he  may 
have  made,  and  which  are  inconsistent  with  his 
present  testimony.  If  he  denies  having  made 
them,  they  may  be  proven  against  him. 

**Vn.  The  court,  in  its  discretion,  may  per- 
mit a  witness  to  be  called  for  further  exami- 
nation. If  permission  is  granted  for  further 
examination-in-chief,  or  further  cross-examina- 
tion, the  parties  have  the  right  of  further  cross- 
examination  and  of  further  re-examination 
respectively. 

*'VHL  A  party  is  entitled  to  the  cross-exami- 
nation of  a  witness  who  has  been,  (1)  examined- 
in-chief,  or,  (2)  according  to  the  English  rule,  if 
he  has  been  intentionally  SAVorn." 

Hypothetical  Questions.  —  The  hypothetical 
question  has  received  considerable  censure.  No 
doubt  there  have  been  cases  where  this  method 
of  eliciting  the  opinion  of  an  expert  mtness  has 
been  abused,  but  such  cases  are  extraordinary, 
and  the  courts  in  their  management  of  trials 
have  regulated  the  length  of  the  hypothetical 
c|uestion  propounded  to  the  experts,  as  in  the 
exercise  of  their  discretion  the}^  quite  properly 
may  do.'*  The  opinion  of  an  expert,  as  was  in- 
dicated in  the  foregoing  synopsis,  need  not  be 
asked  in  all  cases  upon  a  hypothetical  statement 
of  the  facts.    But  if  the  circumstances  of  the  case 

■4  Commonwealth  v.  Johnson,  188  Mass.,  382;  Moses  v.  United 
States,  221  Fed.,  863. 


152  The  Doctor  in  Cotjet 

are  such  that  the  witness  must  express  his  opinion 
upon  a  hypothesis,  there  are  certain  things  he 
should  observe.  If  the  court  permits  a  ridicu- 
lously long  and  highly  involved  question,  the 
witness  need  not  be  afraid  to  say  that  he  cannot 
answer  it,  because  by  answering  a  question  of 
that  kind  he  becomes  ridiculous  himself.  Stewart 
tells  of  a  case  where  a  question  of  some  twenty 
thousand  words  was  answered  by  the  witness  in 
three  words — ' '  I  don  ^t  know. ' '  The  mtness  should 
not  frame  or  assist  in  framing  the  question  that 
is  to  be  asked  him  by  the  side  calling  him  into 
court.  If  he  does,  this  may  be  found  out  upon 
cross-examination,  and  the  mtness  must  avoid 
placing  himself  in  a  partisan  position.  He  may, 
and  properly  should,  prepare  himself  for  the  case, 
but  he  should  have  no  hand  in  preparing  the  case 
itself  if  he  is  to  be  a  witness.  If  asked  to  give 
his  opinion  upon  a  hypothetical  case,  he  should 
take  care  to  detect  inconsistencies  in  the  question. 
Of  course,  each  side  to  a  controversy  may  have 
its  own  theory  of  the  case,  and  the  hypothetical 
question  asked  upon  the  cross-examination  may 
include  a  different  set  of  facts  than  the  one  put 
to  the  witness  upon  the  examination-in-chief,  but 
the  witness,  by  reaching  and  expressing  opposite 
conclusions  upon  such  questions,  is  not  neces- 
sarily contradicting  himself,  because  he  is  not  an 
arbiter  of  the  facts.  The  hypothetical  questions 
merely  suppose  certain  facts  to  be  established, 
and  the  jury  then  decides  which  set  af  facts  is 


Annotations  to  Chapter  I  153 

true.    Facts  not  justified  by  the  proof  cannot  be 
incorporated  into  the  hypothetical  question.^ 

Medical  BooTcs.  —  Expert  medical  witnesses 
would  not  play  so  important  a  part  in  legal  pro- 
ceedings if  the  opinions  of  medical  men  were 
received  in  evidence  through  the  medium  of  books 
wherein  such  opinions  are  announced.  But  even 
the  standard  works  of  medical  literature  are 
excluded.^  There  are  many  reasons  for  this. 
Medical  and  surgical  books  are  considered  unde- 
pendable  because  they  are  statements  wanting 
the  sanction  of  an  oath;  they  are  made  by  one 
who  is  not  present  and  subject  to  cross-examina- 
tion as  to  the  reasons  and  grounds  for  his  opinion, 
and  the  book  may  be  a  compilation  of  a  compila- 
tion and  be  thus  hearsay  evidence  of  the  most 
extreme  kind.  Experiment  and  discovery  are 
continually  changing  theories  upon  scientific  sub- 
jects, so  that  the  sense  of  yesterday  may  be  the 
nonsense  of  to-day.  Medical  authors,  like  writers 
in  other  departments  of  science,  have  their  vari- 
ous and  conflicting  theories,  but  as  the  whole 
range  of  medical  literature  is  not  open  to  men 
of  common  experience,  a  passage  may  be  found 
in  one  book  favorable  to  a  particular  opinion, 
when,  perhaps,  the  same  opinion  may  have  been 

5  Kentucky  Traction  &  Terminal  Co.  v.  Humphrey  (Ky.,  1916), 
182  S.  W.,  854. 

6  Of  the  large  number  of  courts  passing  upon  this  question, 
there  is  a  small  minority,  including  Alabama,  Delaware,  and 
Iowa,  that  permit  authoritative  medical  books  to  be  read  to  the 
jury. 


154  The  Doctor  in  Court 

vigorously  contested  and  successfully  overthrown 
by  other  medical  writers  whose  works,  perhaps, 
would  not  be  known  to  counsel  or  to  client,  or  to 
court  or  jury.  On  the  other  hand,  a  medical 
witness  would  not  only  give  the  fact  of  his  opin- 
ion and  the  grounds  on  which  it  is  formed  with 
the  sanction  of  an  oath,  but  he  would  be  subject 
to  cross-examination  and  would  state  and  explain 
his  opinion  in  language  intelligible  to  men  of 
common  experience,  who  might  otherwise  be  in 
danger  of  misinterpreting  the  author  through 
ignorance  of  the  technical  terms  of  medical 
science.*^ 

While  the  books  themselves  are  not  admis- 
sible, an  expert  witness  is  not  confined  wholly 
to  his  personal  experience  in  the  treatment  of 
men,  but  his  opinions  founded  in  part  by  reading 
the  treatises  prepared  by  persons  of  acknowl- 
edged ability  may  be  given  in  evidence.^  As  was 
stated  by  Chief  Justice  Tyndall  in  an  early  Eng- 
lish case,®  "I  do  not  think  the  books  themselves 
can  be  read,  but  I  do  not  see  any  objection  to 
your  asking  Sir  Henry  Halford  his  judgment,  and 
the  ground  of  it,  which  may  in  some  degree  be 
founded  upon  books,  as  a  part  of  his  general 
knowledge.''  It  is  not  improper  for  an  expert 
medical  witness  to  state  that  his  opinion  was 

7  See  Asthworth  v.  Kittridge,  12  Cush.  (Mass.),  193;  Johnston 
V.  Eichmond,  etc.,  Ey.  Co.,  95  Ga.,  685,  22  S.  E.,  694. 

8  State  V.  Baldwin,  36  Kan.,  1,  12  Pac,  318. 

9  Collier  v.  Simpson,  6  Car.  &  P.,  73. 


Annotations  to  Chapter  I  155 

formed  from  the  study  of  books  and  men,  and 
also  that  all  the  writers  and  authorities  on  the 
subject,  so  far  as  he  knows,  support  him  in  his 
opinion. ^*^  Yet  the  witness  may  not  testify  to 
statements  made  in  medical  books,  thereby  get- 
ting the  opinions  in  the  books  before  the  jury 
indirectly.  Thus  a  doctor  was  asked  on  cross- 
examination  if  he  was  acquainted  with  a  certain 
book.  He  replied  that  he  had  heard  of  it,  but  had 
not  read  it.  He  was  then  asked  whether  he  con- 
sidered it  good  authority,  and  he  replied  that  it 
was.  He  was  asked  to  read  a  certain  passage 
during  the  recess  of  the  court.  This  he  did. 
When  court  convened  he  was  read  the  passage 
and  asked  if  such  was  contained  in  the  book. 
This  was  held  to  be  objectionable  as  merely  a 
way  of  getting  the  opinions  expressed  in  the 
book  into  the  evidence  and  before  the  jury  by 
indirection.^^ 

A  witness  may  refresh  his  recollection  by 
reference  to  the  standard  authorities,^^  but  this, 
of  course,  would  not  be  putting  the  books  them- 
selves in  evidence.  If  an  expert  testifies  that  his 
opinion  is  based  upon  the  teachings  of  a  certain 
medical  book,  then  the  general  rule  is  so  far 
relaxed  as  to  permit  the  book  to  be  read  to  the 
jury  to  contradict  the  witness  and  show  that  it 
does  not    promulgate  the  theory  testified  to  by 

10  state  V.  Baldwin,  supra. 

11  Marshall  v.  Brown,  50  Mich.,  148,  15  N.  W.,  55. 

12  State  V,  Baldwin,  supra. 


156  The  Doctor  in  Court 

such  mtness.^^  Otherwise,  an  ignoramus  might 
by  an  assertion  of  learning  declare  the  most 
absurd  theories  to  be  the  teachings  of  science, 
and  when  pressed  upon  cross-examination  hide 
behind  the  formidable  name  of  some  standard 
authority. 

An  Act  Regulating  Expert  Testimony. — The 
committee  on  insanity  and  criminal  responsi- 
bility ^*  of  the  American  Institute  of  Criminal 
Law  and  Criminology,  at  the  1914  meeting  of  the 
Institute,  presented  and  had  imanimously  ap- 
proved the  following  model  bill : — 

Section  1.  Summoning  of  Witnesses  by  Court. 
— Where  the  existence  of  mental  disease  or  de- 
rangement on  the  part  of  any  person  becomes 
an  issue  in  the  trial  of  a  case,  the  judge  of  the 
trial  court  may  summon  one  or  more  disinterested 
qualified  experts,  not  exceeding  three,  to  testify 
at  the  trial.  In  case  the  judge  shall  issue  the 
summons  before  the  trial  is  begun,  he  shall  notify 
counsel  for  both  parties  of  the  witnesses  so 
summoned.    Upon  the  trial  of  the  case,  the  wit- 

isQark  v.  Commonwealth,  111  Ky.,  433,  63  S.  W.,  740, 
14 The  committee  was  composed  of:  Edwin  R.  Keedy  (pro- 
fessor of  law  in  Northwestern  University),  Chairman;  Adolf 
Meyer  (professor  of  psychiatry  in  Johns  Hopkins  University), 
Baltimore;  Harold  N.  Moyer  (physician),  Chicago;  W.  A.  White 
(superintendent,  Government  Hospital  for  the  Insane),  Wash- 
ington; William  E.  Mikel  (dean  of  the  Law  School  of  the 
University  of  Pennsylvania),  Philadelphia;  Albert  C.  Barnes 
(judge  of  the  Superior  Court),  Chicago;  Morton  Prince  (physi- 
cian), Boston. 


Anh-qtatioxs  TO  Chapter  I  157 

nesses  summoned  by  the  court  may  be  cross- 
examdned  by  counsel  for  both  parties  in  the  case. 
Such  summoning  of  witnesses  by  the  court  shall 
not  preclude  either  party  from  using  other  expert 
witnesses  at  the  trial. 

Sectioe"  2.  Examination  of  Accused  hy  State's 
Witiiess. — In  criminal  cases,  no  testimony  re- 
garding the  mental  condition  of  the  accused  shall 
be  received  from  witnesses  summoned  by  the 
accused  until  the  expert  ^'.itnesses  summoned  by 
the  prosecution  have  been  given  an  opportunity 
to  examine  the  accused. 

Section  3.  Commitment  to  Hospital  for  Ob- 
servation.— ^^Vhenever  in  the  trial  of  a  criminal 
case  the  existence  of  mental  disease  on  the  part 
of  the  accused,  either  at  the  time  of  the  trial  or 
at  the  time  of  the  commission  of  the  alleged 
wrongful  act,  becomes  an  issue  in  the  case,  the 
judge  of  the  court  before  which  the  accused  is 
to  be  tried  or  is  being  tried  shall  commit  the  ac- 
cused to  the  State  Hospital  for  the  Insane,  to  be 
detained  there  for  purposes  of  observation  until 
further  order  of  court.  The  court  shall  direct  the 
superintendent  of  the  hospital  to  permit  all  the 
expert  witnesses  summoned  in  the  case  to  have 
free  access  to  the  accused  for  purposes  of  obser- 
vation. The  court  may  also  direct  the  chief 
physician  of  the  hospital  to  prepare  a  report 
regarding  the  mental  condition  of  the  accused. 
This  report  may  be  introduced  at  the  trial  under 
oath  of  said  chief  physician,  who  may  be  cross- 


158  The  Doctor  in  Court 

examined  regarding  the  report  by  counsel  for 
both  sides. 

Section  4.  Written  Report  hy  Witness. — 
Each  expert  witness  may  prepare  a  written  re- 
port upon  the  mental  condition  of  the  person  in 
question,  and  such  report  may  be  read  by  the 
witness  at  the  trial.  If  the  witness  presenting 
the  report  was  called  by  one  of  the  opposing 
parties,  he  may  be  cross-examined  regarding  his 
report  by  counsel  for  the  other  party.  If  the 
witness  was  summoned  by  the  court,  he  may  be 
cross-examined  regarding  his  report  by  counsel 
for  both  parties. 

Section  5.  Consultation  of  Witnesses, — 
"Where  expert  witnesses  have  examined  the  per- 
son whose  mental  condition  is  an  element  in  the 
case,  they  may  consult  before  testifying,  with  or 
without  the  discretion  of  the  court,  and  may 
prepare  a  joint  report  to  be  introduced  at  the 
trial. 

Section  1  applies  to  both  civil  and  criminal 
cases.  The  purpose  of  this  section  is  to  secure 
the  testimony  of  disinterested  persons,  which 
may  go  to  the  jury  along  with  the  testimony  of 
witnesses  for  the  prosecution  and  defense.  Un- 
der the  present  system,  a  criminal  trial  where 
expert  testimony  is  employed,  generally  resolves 
itself  into  a  contest  between  opposing  witnesses, 
whose  contradictory  opinions  often  confuse, 
rather  than  enlighten,  the  jury.    Such  divergence 


Annotations  to  Chapter  1  159 

of  opinions  must  exist  in  the  very  nature  of  the 
case,  for  each  party  calls  only  those  mtnesses 
whose  opinions  are  in  accord  with  the  theory  of 
that  side. 

The  situation  in  this  respect  has  been  well 
described  by  Sir  George  Jessel,  Master  of  the 
EoUs,  in  Thorne  v.  Worthing  Skating  Eink  Co., 
L.  E.  6,  Ch.  Div.,  notes  415,  416:  <'Now  in  the 
present  instance  I  have,  as  usual,  the  evidence  of 
experts  on  the  one  side  and  on  the  other,  and, 
as  usual,  the  experts  do  not  agree  in  their  opin- 
ion. There  is  no  reason  why  they  should.  As  I 
have  often  explained,  since  I  have  had  the  honor 
of  a  seat  on  this  Bench,  the  opinion  of  an  expert 
may  be  honestly  obtained,  and  it  may  be  quite 
different  from  the  opinion  of  another  expert,  also 
honestly  obtained.  But  the  mode  in  which  ex- 
pert evidence  is  obtained  is  such  as  not  to  give 
the  fair  result  of  scientific  opinion  to  the  court. 
A  man  may  go,  and  does  sometimes,  to  half  a 
dozen  experts.  He  takes  their  honest  opinion; 
he  finds  three  in  liis  favor  and  three  against 
him;  he  says  to  the  three  in  his  favor,  will  you 
be  kind  enough  to  give  evidence?  He  pays  the 
ones  against  him  their  fees  and  leaves  them 
alone ;  the  other  side  does  the  same.  It  may  not 
be  three  out  of  six,  it  may  be  three  out  of  fifty. 
...  I  am  sorry  to  say  the  result  is  that  the  court 
does  not  get  that  assistance  from  the  experts 
which,  if  they  were  unbiased  and  fairly  chosen, 
it  would  have  a  right  to  expect," 


160  The  Doctok  in  Court 

A  similar  statement  was  made  by  one  of  the 
medical  members  of  this  committee  in  the  Neiv 
York  Medical  Journal,  in  July,  1908.  It  is  sug- 
gested that  the  proposal  in  Section  1  mil  tend 
to  counteract  the  evils  of  the  system  described 
above. 

A  statute  substantially  similar  to  Section  1 
was  enacted  by  the  Michigan  legislature  in  1905. 
The  constitutionality  of  this  statute  was  tested 
in  1910,  in  the  case  of  People  v.  Dickerson,  164 
Mich.,  148,  and  the  Supreme  Court  of  that  State 
held  that  the  statute  violated  the  **due  process 
of  law"  clause,  because  the  calling  of  witnesses 
was  no  part  of  the  judicial  function.  The  court 
also  objected  to  the  statute  because  it  did  not 
provide  for  notice  to  the  prosecution  and  defense 
of  the  v»T.tnesses  appointed  by  the  court.  The 
first  position  taken  by  the  court  has  been  much 
criticized,  and  it  may  be  safely  regarded  as  in- 
correct. Professor  Wigmore,  in  his  treatise  on 
Evidence,  states  that  at  common  law  the  trial 
judge  had  the  power  to  summon  a  witness  not 
called  by  the  parties,  citing  Coulson  v.  Disbor- 
ough,  2  Q.  B.,  316,  and  Selpli  v..  State,  22  Fla., 
537.  In  the  folloAving  common  law  cases  the 
judge,  of  his  own  initiative,  called  witnesses  to 
testify:  Eex  v.  Simonds,  1  C.  &  P.,  84  (1823); 
Rex  V.  Bodle,  6  C.  &  P.,  186  (1833);  Reg.  v. 
Holden,  8  C.  &  P.,  186  (1838).  The  contention  of 
the  Michigan  court  that  the  opposing  parties 
should  be  notified  of  the  witnesses  appointed  by 


AlsTNOTATIOIS^S   TO    ChAPTER   I  161 

the  court,  is  regarded  as  sound,  and  a  provision 
for  such  notice  is  incorporated  in  Section  1. 
The  provision  in  the  section  that  the  witnesses 
appointed  by  the  court  may  be  cross-examined  by 
counsel  for  the  prosecution  and  defense,  is  in 
accordance  with  the  rule  of  the  common  law. 
(Wigmore,  Evidence,  §'910,  4.) 

Section   2    applies    to    criminal    cases    only. 
This  section  v/ill  enable  witnesses  for  the  prose- 
cution, who  at  present  are  limited  in  most  cases 
to  opinion  evidence,  to  testify  as  to  the  'actual 
condition  of  the  defendant.    In  this  way  the  neces- 
sity for  the  much  abused  and  much  criticized 
hypothetical  question  will  be   considerably  les- 
sened.    It   is    submitted    that    Section    2    does 
not  violate  the  constitutional  provision  against 
self-incrimination.       (See  "Wigmore  on  Evidence, 
§2265.)     In  People  v.  Kemmler,  118  N.  Y.,  580, 
584,  the  Court  of  Appeals  of  New  York  said :    "It 
is  urged  that  the  court  erred  in  permitting  the 
physicians,  called  as  witnesses  for  the  people,  to 
testify  as  to  the  mental  condition  of  the  prisoner. 
The  argument  is  that  either  the  relation  of  pa- 
tient and  physician  existed,  or  else  the  prisoner 
was  compelled  to  furnish  evidence  against  him- 
self.   These  physicians  were  sent  to  the  jail  by 
the  district  attorney  to  make  an  examination  of 
the    prisoner's   mental   and   physical   condition. 
On  the  stand  they  were  inquired  of  as  to  the  con- 
versation had  with  him,  or  as  to  the  transactions 
in  the  jail.     Their  testimony  was  simply  their 


162  The  Doctor  in  Court 

opinion  of  his  mental  condition,  as  they  saw  him 
in  his  cell  and  in  the  courtroom,  but  they  gave  no 
evidence  of  his  statements  of  his  physical  condi- 
tion.   Such  evidence  is  quite  unobjectionable." 

Section  3,  which  is  applicable  to  criminal 
cases  only,  does  not  present  a  new  idea.  Maine, 
New  Hampshire,  Massachusetts,  and  Vermont 
have  statutes  providing  for  the  commitment  of 
a  defendant,  who  is  relying  upon  mental  disease 
as  a  defense,  to  a  hospital  for  purposes  of  obser- 
vation. According  to  the  language  of  the  Maine 
and  Vermont  statutes,  the  report  of  the  super- 
intendent is  final  on  the  question  of  the  defend- 
ant's condition,  for  they  provide  that  the  accused 
shall  be  detained  and  observed  *'that  the  truth 
or  falsity  of  the  plea  (of  insanity)  may  be  ascer- 
tained.** The  establishment  in  large  cities  of 
psychopathic  institutes,  such  as  the  one  recently 
started  in  Chicago,  in  connection  with  the  Mu- 
nicipal Court,  would  facilitate  greatly  the  exami- 
nation and  study  of  persons  mentally  diseased 
or  deficient. 

Section  4,  which  covers  both  civil  and 
criminal  cases,  will  enable  the  expert  witness  to 
present  a  much  more  accurate  and  connected 
description  of  the  defendant's  mental  condition, 
particularly  with  reference  to  the  symptoms  of 
his  disease.  Under  the  present  system,  by  which 
the  opinion  of  the  witness  must  be  draA\m  out  by 
a  series  of  questions  put  up  by  counsel,  witnesses 
often  feel  that  they  are  unable  to  present  an 


A^TNOTATioNs  TO  Chapter  I  163 

adequate  diagnosis  of  defendant's  condition,  and 
to  express  a  full  and  convincing  opinion  regard- 
ing his  powers  of  judgment  and  decision.  Such 
a  plan  as  proposed  in  Section  4  has  worked 
successfull}^  in  Scotland.  The  medical  \\itness  in 
a  Scottish  criminal  trial,  after  an  examination  of 
the  defendant,  prepares  a  written  report,  which 
he  files  vdth.  the  clerk  of  the  court.  At  the  trial, 
after  the  "^dtness  has  been  sworn  and  qualified 
as  an  expert,  he  reads  his  report  to  the  jury.  The 
counsel  for  the  party  which  has  called  the  "witness 
may  ask  any  explanatory  questions,  and  the  wit- 
ness is  then  cross-examined  by  the  counsel  for  the 
other  side. 

Section  5,  which  is  applicable  to  both  classes 
of  cases,  is  simply  for  the  purpose  of  saving  time 
and  eliminating  any  possibility  for  misunder- 
standing, where  the  experts  are  able  to  agree  in 
their  opinions. 

Neiv  Yorlc  Statute. — The  movement  toward 
the  reform  of  expert  testimony  received  a  definite 
impetus  by  the  action  of  the  State  of  New  York 
in  providing  for  the  appointment  by  the  courts  in 
insanity  cases  of  disinterested  examining  physi- 
cians, who  may  be  sworn  as  witnesses  by  either 
party,  and  whose  compensation  for  making  the 
examination  and  testifying  is  paid  by  the  courts. 
This  important  act  is  amendatory  to  Chapter  35 
of  the  LaAvs  of  1909,  entitled,  "An  act  in  relation 
to  the  administration  of  justice  constituting  chap- 
ter 30  of  the  consolidated  laws,"  and  became  law 


Ifi4:  The  Doctor  in  Court 

April  14,  1915.  The  new  enactment  provides  for 
inserting  in  the  original  act  a  new  section  after 
section  30  thereof,  to  be  section  31,  and  to  read 
as  follows: 

Section  31.  Examining  Physicians.  — In  a 
criminal  action  or  proceeding  or  in  a  special  pro- 
ceeding instituted  by  the  State  or  writ  of  habeas 
corpus  or  certiorari  to  inquire  into  the  cause  of 
detention,  in  which  the  soundness  of  mind  of  a 
person  is  in  issue,  the  court  in  which,  or  the  judge 
or  justice  before  whom  the  action  or  special  pro- 
ceeding is  pending  may  appoint  not  more  than 
three  disinterested  competent  physicians  to  ex- 
amine such  person  as  to  soundness  of  mind  at  the 
time  of  the  examination.  Any  such  examining 
physician  may  be  sworn  as  a  witness  at  the  in- 
stance of  any  party  to  the  action  or  proceeding. 
The  compensation  of  such  examining  physician 
for  making  such  examination  and  testifying, 
when  certified  by  the  presiding  judge  or  justice 
of  his  court,  or  judge  or  justice  making  the  ap- 
pointment, shall  be  paid  out  of  any  funds  avail- 
able for  the  payment  of  and  in  the  same  manner 
as  other  court  expenses. 


ANNOTATIONS   TO   CHAPTER  II 

THE  CONTRACT  OF  THE  PROFESSION 

Contract  of  Attendance. — Suppose  a  physician 
agrees  with  a  woman  to  render  medical  assistance 
during  her  approaching  confinement,  and  that 
when  his  attendance  becomes  necessary,  he  is 
treating  a  patient  whose  condition  is  such  that  he 
cannot  leave  to  attend  the  other  person.  Does 
this  fnrnish  him  with  an  excuse  for  breaching  his 
contract  of  attendance  1  A  new  case  answers  this 
in  the  negative.^  It  holds  that  under  such  cir- 
cumstances the  physician  is  responsible  for  in- 
jury caused  the  woman.  If  a  person  assumes 
obligations  to  different  parties,  the  performance 
of  which  become  incompatible  with  each  other, 
both  parties  being  entitled  in  equal  right,  it  is 
no  excuse  for  a  default  to  one  party  that  both 
obligations  could  not  be  performed,  and  that  the 
person  bound  chose  to  perform  his  obligation  to 
the  other. 

Quite  frequently  in  confinement  cases  a  con- 
tract is  made  in  advance  with  a  physician  for  his 
attendance.  To  avoid  being  placed  in  the  posi- 
tion of  the  doctor  in  the  case  set  forth  above,  it 

iHood  V.  Moffett  (Miss.,  1915),  69  So.,  664.     See  also  ante, 
pp.  45-46. 

165       • 


166  The  Doctor  m  Court 

would  be  best  for  the  physician  in  entering  such 
agreement  to  qualify  it  so  as  to  include  just  such 
a  contingency.  Prompt  notice  should  be  then 
given  of  inability  to  attend,  and,  if  possible,  a 
substitute  should  be  sent.  Yet  in  the  reported 
case  it  was  decided  that  the  doctor  giving  notice 
or  sending  another  physician  in  his  place  would 
not  have  been  in  compliance  with  his  unqualified 
promise  of  attendance,  and  could  have  been 
availed  of,  if  at  all,  in  mitigation  of  damages 
only. 

Obligation  to  Follow  the  Customary  Method 
of  Treatment. — A  physician  acts  at  his  peril  in 
departing  from  the  customary  and  usual  course 
of  treatment  in  a  given  case.  He  can  indulge  in 
experiments  only  at  his  own  risk.  This  has  been 
the  law  even  so  far  back  as  1767.  In  that  year 
a  prominent  English  surgeon,  who  had  been 
upon  the  staff  at  St.  Bartholomew's  for  up- 
ward of  twenty  years  and  who  was  a  lecturer 
in  surgery,  was  successfully  sued  for  negli- 
gence because  he  experimented  upon  a  patient. 
It  seems  that  he  endeavored  to  get  an  extension 
of  one  of  the  patient's  limbs  by  means  of  a 
heavy  metal  instrument  with  teeth,  and  in  so 
doing  injured  the  patient.^  A  very  recent  case  ^ 
in  this  country  holds  that  under  certain  cir- 
cumstances a  doctor  may  employ  a  remedy  ap- 
proved by  the  profession,  though  perhaps  not 

2  Slater  v.  Baker,  2  Wils.,  359.     See  ante,  pp.  38-41. 
sMiller  v.  Tolles  (Mich.,  1914),  150  N.  W.,  118. 


Annotations  to  Chapter  II  167 

generally  known  by  it.  At  the  time  the  doctor 
was  called,  the  plaintiff's  ankle  was  in  an  ex- 
tremely serious  condition.  It  was  in  snch  a 
condition  that  in  the  opinion  of  his  attending 
physician  an  amputation  was  necessary.  After 
a  consultation  it  was  determined  to  attempt  to 
save  the  patient's  foot  by  a  remedy  known  as 
** Murphy  Treatment,"  which  in  some  instances 
of  diseased  joints  had  achieved  remarkable  re- 
sults. As  the  only  alternative  was  immediate 
amputation,  the  doctor  was  held  not  to  be  re- 
sponsible for  a  failure  of  the  treatment. 

Duty  in  Performance  of  Surgical  Operation. 
— In  performing  an  operation  it  is  the  duty  of 
a  surgeon  to  exercise  reasonable  care  and  skill. 
The  operation  begins  when  the  incision  is  made 
and  ends  when  the  opening  has  been  closed  in 
the  proper  way,  after  all  appliances  necessary 
to  a  successful  operation  have  been  removed 
from  the  body.  Throughout  the  operation  the 
law  imposes  upon  the  surgeon  the  duty  of  ex- 
ercising such  care  and  skiU.  The  removal  of 
sponges  or  pads  is  a  part  of  the  operation,  and 
an  operation  cannot  be  said  to  be  concluded  un- 
til such  removal  takes  place.  For  this  reason 
it  is  generally  held  that  a  surgeon  cannot  re- 
lieve himself  from  liability  for  injury  to  a  pa- 
tient by  leaving  a  sponge  in  the  wound  after 
the  operation,  by  any  custom  or  rule  requiring 
the  attending  nurse  to  count  the  sponges  used 
and  removed,  accompanied  by  the  statement  of 


168  The  Doctor  in  Court 

the  nurse  that  the  sponges  were  all  properly 
accounted  for,  and  his  reliance  on  snch  state- 
ments.* 

4Barnett'3  Adm'r.  v.  Brand  (Ky.,  1915),  177  S.  W.,  461; 
Davis  V.  Kerr,  239  Pa.,  351,  86  Atl.,  1007,  46  L.  R.  A.  (N.  S.), 
611. 


ANNOTATIONS    TO    CHAPTEE    HI 

THE    CIVIL    RESPONSIBILITY    OF    THE    PROFESSION 

Responsibility  for  Injury  to  Patient  from 
the  Use  of  Electrical  Appliances. — The  use  of 
electricity  in  the  diagnosis  and  treatment  of 
medical  and  surgical  cases  is  a  comparatively- 
new  thing.  The  employment  of  many  electrical 
appliances  is  accompanied  by  danger  to  the  pa- 
tient unless  they  are  skillfully  handled  and  care 
is  taken  to  prevent  injury.  This  is  especially 
true  of  X-ray  machines,  which  sometimes  inflict 
serious  burns.  The  law  as  enunciated  by  the 
few  courts  which  have  passed  thereon  is  not 
as  clear  and  satisfactory  as  it  should  be  in 
cases  of  this  character,  but  it  seems  to  be 
reasonably  well  established  that  a  physician  is 
responsible  in  damages  for  injury  resulting  from 
a  failure  to  use  that  degree  of  skill  and  care 
ordinarily  possessed  and  exercised  by  other 
members  of  the  profession  similarly  located  who 
use  such  agencies  in  their  practice.  In  other 
words,  the  rule  is  the  same  in  respect  to  prac- 
titioners in  this  particular  line  as  is  applied 
to  other  practitioners  and  to  ordinary  eases  of 

169 


l70  The  Doctor  in  Couet 

malpractice.^  Of  course,  if  the  physician  holds 
himself  out  as  a  specialist  in  the  use  of  such 
instrumentalities,  he  will  be  held  to  the  same 
degree  of  care  as  is  exercised  by  other  special- 
ists of  his  kind.  l)ue  regard  is  had  to  the 
state  of  scientific  knowledge  at  the  time  of  his 
treatment.^ 

The  physician  is  not  an  insurer.  He  does 
not  warrant  favorable  results.  He  may,  of 
course,  guarantee  the  success  of  his  treatment, 
but  in  the  absence  of  any  special  contract  to 
that  effect  no  inference  of  negligence,  generally 
speaking,  will  be  drawn  from  the  result  of  his 
treatment.^  If  a  patient  is  burned  as  a  result 
of  X-ray  treatment,  the  better  and  more  general 
rule  is  that  this  fact  alone  is  not  of  itself  evi- 
dence of  negligence  on  the  part  of  the  physician.* 

iSee  Henslin  v.  Wheaton,  91  Minn.,  219,  97  N.  W.,  882;  64 
L.  K.  A.,  126;  Sweeney  v.  Erving,  35  App.  D.  C,  57;  Coombs  v. 
King,  107  Me.,  376,  78  Atl.,  468;  Gore  v.  Brockman,  138  Mo,  App., 
231;  and  see  other  cases  relating  to  the  X-rays,  ante,  pp.  11, 
54-55. 

2  See  ante,  p.  34.  The  right  to  'have  one's  responsibility  con- 
sidered in  relation  to  the  state  of  knowledge  at  the  time  of  the 
alleged  negligence  or  unskillfulness  was  considered  important  in 
a  certain  X-ray  case  decided  in  1910.  The  injury  was  caused  in 
1903,  and  the  physician  insisted  that  he  could  not  be  judged  with 
reference  to  the  state  of  X-ray  knowledge  at  the  time  of  the  trial, 
as  great  progress  had  been  made  in  X-ray  treatment  during  the 
intervening  years.  The  court  recognized  this  right.  (Coombs  v. 
King,  107  Me,,  376,  78  Atl.,  468.) 

3  See  ajite,  pp.  36-38,  73-74. 

4  Sweeney  v.  Erving,  35  App.  D.  C,  57,  affirmed,  228  U.  S., 
233.    See  alsoi  cases  cited  in  note  1,  ante. 


Annotatio:n^s  to  Chapter  III  171 

Something  more  is  needed  to  establish  a  good 
cause  of  action  against  the  doctor.  There  must 
be  evidence  of  negligence  by  witnesses  qualified 
to  testify,  just  as  in  the  ordinary  cases  of  negli- 
gence or  malpractice. 

This  rule  is  general,  but  not  universal,  as 
there  is  an  Iowa  case  ^  directly  opposed  to  it, 
which  was  an  action  against  a  physician  for 
negligence  in  the  use  of  the  X-rays  in  the  treat- 
ment of  appendicitis  and  negligence  in  the  ap- 
plication of  the  remedy.  The  court  decided  that 
the  fact  of  the  patient  sustaining  an  X-ray  burn 
was  of  itself  evidence  of  improper  treatment. 
It  has  been  held  also  that  the  use  of  such  a 
dangerous  agency  by  one  who  had  little  or  no 
knowledge  of  the  effect  of  X-ray  exposures 
might  w^ell  warrant  the  conclusion  that  it  was 
negligence  per  se.^  There  is  a  decision  holding 
that  if  the  taking  of  an  X-ray  picture  in  a 
proper  and  careful  manner  does  not  necessarily 
♦  result  in  injury,  then  the  fact  that  injury  did 
result  is  some  evidence,  which  may  be  rebutted, 
that  the  proper  care  and  skill  were  not  exer- 
cised.''^    In  a  criminal  case  in  which  a  physician 

5  Shockley  v.  Tucker,  127  Iowa,  456,  103  N.  W.,  360, 

6  Sauers  V.  Sraits,  48  Wash.,  557,  95  Pac,  1097,   17  L.  R.  A. 
(N.  S.),  1242. 

7  George  v.  Shannon,  92  Kan.,  801,  142  Pac,  967. 
Radiographs  are  admissible  in  evidence  to  show  the  existence 

of  physical  conditions.  The  person  who  takes  the  negatives  must 
be  prepared  to  qualify  as  one  who  understands  radiography;  he 
must  be  ready  to  testify  that  they  are  correct  representations  of 


172  The  Doctor  m  Court 

mortally  burned  his  patient  while  taking  aU 
X-ray  picture  of  her  hip  and  was  indicted  for 
second  degree  manslaughter,  the  court  said,  "We 
must  take  judicial  notice  that  X-ray  machines 
sometimes  inflict  serious  burns,  and  the  in- 
dictment characterizes  the  instrument  used  as 
dangerous  unless  skillfully  handled  and  presump- 
tively known  by  defendant  to  be  such,  notwith- 
standing which  he  placed  it  too  close  to  his 
subject,  and  also  failed  during  an  excessive 
exposure  to  give  her  the  attention  requisite  to 
prevent  injury.  These  allegations  import  crim- 
inal negligence,  and  the  questions  raised  thereby 
are  for  the  jury."^ 

As  harm  may  result  from  the  inability  of 
a  patient  to  undergo  an  X-ray  examination, 
care  should  be  taken  by  the  examining  physi- 
cian to  determine  whether  or  not  the  patient  is 
so  able,  although  it  has  been  decided  that  where 

the  condition  of  the  subject-matter  as  it  was  on  the  date  the 
negatives  were  taken,  and  that  the  position  of  the  negatives  with 
reference  to  the  camera  was  not  improper,  unfair,  or  fraudulent. 
(Doyle  V,  Singer  Sewing  Machine  Co.  [Mass.,  1915],  107  N.  E., 
949.)  The  radiographer  should  be  very  careful  to  identify  the 
negatives  at  the  time  of  taking  them,  as  considerable  time  may 
elapse  before  they  are  used  in  court.  It  is  best  to  make  full 
notation  of  the  name  of  the  patient,  the  date  and  time  of  the 
making  of  the  negatives,  and  fully  describe  what  they  represent 
with  the  position  of  the  camera  in  relation  to  the  subject  of  the 
pictures.  If  this  is  not  done,  a  skillful  cross-examiner  may 
successfully  raise  a  doubt  as  ta  the  authenticity  of  the  negatives, 
and  their  evidential  weigbt  may  be  thus  destroyed, 
estate  v.  Lester  (Minn.,  1914),  149  N.  W.,  297, 


Ai^-NOTATION-S   TO    CHAPTER   III  173 

a  physician  of  acknowledged  ability  sends  a 
patient  to  another  physician  to  have  an  X-ray 
examination  made,  the  examining  physician  need 
make  no  preliminar}^  investigation,  but  may  rely 
upon  the  judgment  of  the  other  physician  that 
the  patient  can  undergo  such  examination.^ 

Injury  and  responsibility  may  accompany 
and  follow  the  negligent  use  of  other  electrical 
appliances.  An  instance  of  this  is  supplied  by 
a  case  in  which  the  plaintiff  was  placed  by  the 
defendant,  a  physician,  upon  an  insulated  plat- 
form connected  with  an  electrical  machine. 
Above  and  in  front  of  her  head  was  put  a 
conical  cap.  Static  electricity  was  caused  to  be 
discharged  from  the  machine,  through  the  cap, 
in,  upon,  and  through  the  plaintiff.  The  de- 
fendant then  left  the  room.  No  attendant  was 
present.  After  eight  or  ten  minutes  the  plaintiff 
screamed.  The  defendant  immediately  entered 
the  room  and  discovered  the  plaintiff's  head  was 
smoking.  The  defendant  admitted  the  burn,  but 
denied  negligence.  It  was  held  this  evidence 
was  sufficient  to  take  the  case  to  the  jury.  There 
was  a  verdict  of  $1,200  against  the  physician.^'' 

Responsibility  for  Unsanctioned  Operation 
upon  a  Minor. — Consent  makes  a  surgical  oper- 
ation lawful,  and  the  surgeon  is  not  responsible 
if  he  exercises  ordinary  care  and  skill  and  uses 
his  best  judgment.     Consent  may  be  expressly 

9  Sweeney  v.  Erving,  35  App.  D.  C,  57,  affirmed  228  U.  S.,  233. 

10  Frisk  v.  Cannon,  110  Minn.,  438,  126  N.  W.,  67. 


174  The  Doctor  ii^  Court 

given,  but  is  usually  implied.  In  the  absence 
of  consent  to  tEe  operation  the  utmost  skill  and 
care  in  its  performance  would  not  justify  the 
operation.  When  there  is  an  emergency,  and 
when  any  <ielay  would  endanger  the Jife -or-iiealth 
of  the  patient,  no  consent  is  necessary.  A  minor 
being  incapable  of  legally  consenting  to  the  ad- 
ministration of  an  anaesthetic  and  a  surgical 
operation,  consent  must  be  obtained  from  the 
person  clothed  with  authority  to  consent  by  law, 
which  would  be  the  parent  or  guardian,  in  case 
there  be  such  person.  A  great~Heal  of  care 
should  be  exercised  by  the  doctor  in  getting  the 
consent  of  the  proper  person." 

A  good  illustration  of  the  importance  of  so 
doing  is  furnished  by  a  Texas  case.^^  Without 
the  knowledge  of  her  parents,  an  adult  sister 
of  a  little  girl  eleven  years  old  took  her  to  a 
doctor  and  at  the  instance  and  request  of  this 
adult  sister  the  physician  operated  upon  the 
child  for  adenoids.     The  older  sister  was  pres- 

11  The  law  relating  to  operations  is  considered  ante,  p,  62  et 
seq.  For  the  law  applicable  to  hospitals,  see  Hospitals  and  the 
Law   (Eebman  Company,  New  York),  Ch.  II. 

In  a  recent  case  upon  this  question  of  consent  to  an  operation, 
it  appeared  that  the  condition  of  the  patient  was  such  that 
she  could  not  consent  to  the  amputation  of  her  leg.  It  was  neces- 
sary to  operate  at  once.  The  doctor  consulted  with  the  patient's 
mother,  who  gave  her  consent  and  said  her  daughter  had  con- 
sented. It  was  held  that  the  doctor  was  justified  in  relying  on 
the  mother's  consent  and  operating,  as  this  was  the  implied 
consent  of  the  patient.  (Barfield  v.  South  Highland  Infirmary 
[Ala.,  1915],  68  So.,  30.) 

izRishworth  v.  Moss  (Tex.,  1913),  159  S.  W.,  122. 


Annotations  to  Chapter  III  175 

ent  when  chloroform  was  administered  and  the 
operation  performed.  The  child  never  recov- 
ered consciousness  after  being  anaesthetized. 
The  physician  was  not  negligent  or  unskillful, 
but  in  a  suit  against  him  by  the  father  and 
mother  he  was  held  responsible.  They  were 
easily  accessible  by  telephone  or  telegraph  and 
there  was  no  emergency.  The  presence  of  the 
sister  did  not  justify  him  in  performing  the 
operation. 

In  a  somewhat  similar  case,*^  a  different  re- 
sult was  reached.  Stephen  Bakker,  a  boy  of 
seventeen,  lived  with  his  father  on  a  farm. 
He  was  a  large,  healthy-appearing  person,  but 
had  a  tumor  upon  his  left  ear  the  size  of  a 
dove's  egg.  Wishing  medical  advice,  he  went 
to  a  nearby  city,  and,  accompanied  by  an  aunt 
and  two  adult  sisters,  went  to  consult  the  de- 
fendant, who  was  a  specialist  and  had  practised 
for  a  long  time.  He  was  sent  to  another  physi- 
cian for  a  microscopic  examination,  and  later 
he  came  to  the  defendant's  office  again  with  some 
of  his  adult  relatives  and  received  the  report 
of  the  microscopic  examination.  Arrangements 
were  then  made  for  an  operation  at  a  hospital. 
An  expert  in  the  administration  of  anaesthetics 
examined  his  heart  and  lungs,  and  as  they  ap- 
peared normal  commenced  to  administer  chloro- 
form by  the  mask  and  drop  method.  When 
about  one-third  of  an  ounce  had  been  adminis- 

13  Bakker  v.  Welsh,  144  Mich.,  632,  108  N.  W.,  94. 


176  The  Doctor  iis-  Cotjet 

tered,  which  took  from  seven  to  ten  minntes, 
the  heart  of  the  patient  suddenly  stopped  beat- 
ing. Every  means  known  to  the  medical  pro- 
fession was  used  to  revive  the  patient,  but  with- 
out avail.  There  was  no  negligence.  The  record 
did  not  show  that  the  father,  who  sued  the  physi- 
cian, knew  an  operation  was  to  be  performed, 
but  the  defendant  was  held  not  liable  under  the 
circumstances  for  failure  to  get  the  father's 
consent. 

Emergency  cases  in  which  a  minor  has  been 
injured  frequently  occur,  and  it  is  necessary  to 
operate  instantly  in  order  that  life  may  be  pre- 
served. Many  small  children  are  injured  upon 
the  streets  in  large  cities.  To  hold  that  a  sur- 
geon must  wait  until  perhaps  he  shall  be  able 
to  secure  the  consent  of  the  parents  before 
giving  the  injured  one  the  benefit  of  his  skill 
and  learning,  to  the  end  that  life  may  be  pre- 
served, would  result  in  the  loss  of  many  lives 
which  might  otherwise  be  saved.  The  courts 
recognize  this  and  indulge  in  no  presumptions 
that  competent  surgeons  will  wantonly  operate, 
nor  that  they  will  fail  to  obtain  the  consent  of 
parents  to  operations  where  such  consent  may 
be  reasonably  obtained  in  view  of  the  exigency.^* 
If  there  is  an  emergency  and  time  does  not 
serve  to  get  tEe  consent  of  the  proper  person, 
the  physician  may.  operate  without  any  author- 
ization and  will  incur  no  liability  for  so  doing. 

i4Luka  V,  Lowrie,  171  Mich.,  122,  136  N.  W.,  1106, 


ANNOTATioisrs  TO  ChapteS  III  177 

Disregarding  Instructions  of  Patient  as  to 
Operation. — ^If  a  contract  is  made  between  a 
patient  and  a  surgeon,  the  patient  has  a  right 
to  insist  upon  a  strict  performance  of  it,  and 
a  departure  from  the  specific  operation  stipu- 
lated for  is  unlawful,  wrongful,  and  constitutes 
a  trespass  upon  the  patient's  person.  Such  is 
the  law  as  set  forth  in  an  Oklahoma  case.  A 
young  woman  stepped  upon  a  nail  which  pene- 
trated the  great  toe  of  her  right  foot.  Inflam- 
mation set  in,  and  the  wound  not  having  healed, 
some  sixty  days  after  the  accident,  she  had  it 
examined  by  the  defendant  who  advised  an  op- 
eration. The  operation  was  to  be  made  by  mak- 
ing an  incision  in  the  foot  or  toe  so  as  to  drain 
the  joint  and  remove  any  foreign  matter  that 
might  be  found  therein.  In  performing  the 
operation  under  an  anaesthetic,  a  sesamoid  bone 
was  removed.  It  was  not  claimed  that  the  oper- 
ation was  unskillfuUy  performed,  but  that  the 
defendant  expressly  agreed  not  to  remove  any 
bones,  and  that  the  removal  of  the  bone  was 
without  authority  or  consent.  There  was  no 
emergency.  The  plaintiff  recovered  a  verdict 
of  $1,000.15 

isRolater  v.  Strain,  39  Okla.,  572,  137  Pac,  96,  50  L,  R.  A. 
(N.  S.),  880.     See  ante,  p.  62  et  seq. 

In  an  unreported  English  case  (Beatty  v.  Cullingworth),  a 
young  woman  was  operated  upon  for  ovarian  cyst.  She  was 
about  to  be  married  and  told  the  operating  surgeon  that  she 
would  not  consent  to  the  removal  of  both  ovaries.  She  said,  "If 
you  find  both  ovaries  diseased^  you  must  remove  neither."    He 


178  The  Doctor  is  Court 

Evidence  of  Negligence  in  Performance  of 
Operation. — "In  the  case  at  bar  we  have  an 
infant,  who  when  taken  in  hand  by  the  physician 
was  suffering  with  what  is  said  to  have  been 
bronchial  pneumonia.  The  defendant  operated 
on  him  and  treated  him  for  that,  and  according 
to  the  defendant  the  infant  was  in  a  fair  way 
to  recover  his  normal  condition.  In  the  further 
course  of  that  treatment,  however,  the  physician 
inserted  a  rubber  tube,  without  securing  it,  and 
it  slipped  into  the  cavity  of  the  body,  lodged 
there  and  remained  there  imtil  removed  in  the 
course  of  a  third  operation  upon  the  body  of 
the  child,  and  when  removed  was  found  to  be 
coated  over  with  foreign  matter.  During  all 
the  time  of  its  presence — ^in  fact,  from  the  time 
it  dropped  from  sight  and,  as  subsequently 
proved,  feU  inside  the  body  of  the  infant,  the 
latter  wasted  away  until  he  died.  We  do  not 
believe  that  on  such  facts  any  jury  would  say 
that  the  acts  of  the  defendant  were  not  negli- 

answered,  "You  may  be  sure  I  shall  not  remove  anything  I  can 
help."  He  removed  both  ovaries,  as  they  were  in  a  diseased  state. 
The  court,  in  summing  up  the  case  to  the  jury,  said,  "If  a 
medical  man,  with  a  desire  to  do  his  best  for  the  patient,  tmder- 
takes  an  operation,  I  should  think  it  is  a  humane  thing  for  him 
to  do  everything  in  his  power  to  remove  the  mischief,  provided 
he  has  no  definite  instructions  not  to  operate.  There  was  here 
no  question  as  to  the  propriety  of  the  operation,  and  the  de- 
fendant always  told  the  plaintiff  she  must  give  him  a  free  hajid. 
If  you  think  tacit  consent  was  given,  you  must  find  for  the 
defendant."  See  Halsbury'a  Laios  of  England,  Vol.  XX,  p.  333; 
10  Harv.  Law  Rev.,  376. 


Annotations  to  Chapter  III  179- 

gent,  no  matter  how  many  expert  professional 
gentlemen  might  have  testified  to  the  contrary. 
The  defendant  held  himself  out  as  a  physician, 
undertook,  for  pay,  the  care  and  treatment  of 
this  little  baby,  and  he  owed  it  and  its  father 
careful  and  skillful  treatment."*® 

In  another  case  in  which  the  patient  died, 
it  appeared  that  the  patient  was  operated  on 
and  her  intestines  were  found  to  be  a  mass  of 
adhesions.  The  adhesions  were  separated.  Ten 
days  later  another  operation  was  performed 
when  five  careful  searches  were  made  through 
her  intestines  for  a  sponge  that  was  supposed 
to  be  lost,  and  her  intestines  being  found  at  that 
time  to  be  again  an  adhesive  mass,  the  adhe- 
sions were  broken  up  and  the  intestines  sepa- 
rated. In  this  case  it  was  apparent  that  the 
jury  was  fully  justified,  under  such  evidence,  in 
finding  in  favor  of  the  defending  doctor.*'' 

Reliance  upon  False  Advice  of  Physician. — 
A  physician  who  was  employed  to  treat  a  wound 
which  became  an  infectious  sore  directed  the 
wife  of  the  patient  to  assist  him  in  dressing  the 
wound,  assuring  her  there  was  no  danger  of  in- 
fection, and  relying  on  his  advice  she  assisted 
him  and  became  infected  with  septic  poison.  The 
physician  was  held  to  be  liable,  and  the  fact  that 
she  became  infected  because  of  some  scratches 
on  her  hand  was  no  excuse  for  him,  as  he  could 

leSontag  v.  Ude  (Mo.,  1915),  177  S.  W.,  659. 
17 Ruble  V.  Busby  (Idaho,  1915),  149  Pac,  722. 


180  The  Doctor  iit  Coutit 

not  rely  on  her  perfect  physical  condition  in 
giving  advice.^® 

False  Imprisonment  of  Patient. — That  a  phy- 
sician may  be  responsible  for  falsely  imprison- 
ing a  patient  is  sho^vn  by  a  recent  case  in  which 
a  yonng  woman  was  detained  in  a  hospital 
against  her  mil.  Upon  entering  the  institution 
she  signed  a  paper  agreeing  to  the  rules  and 
regulations  of  the  institution.  For  thirty-two 
days  she  was  not  permitted  to  communicate  with 
her  family  or  friends,  and  for  a  considerable 
part  of  that  time  she  was  confined  in  a  locked 
and  barred  cell.  She  was  forcibly  subjected  to 
having  her  hair  shampooed  and  to  massage  of 
delicate  portions  of  her  body  and  to  hypodermic 
injections  against  her  will.  It  did  not  appear 
that  her  physical  condition  was  such  that  she 
might  not  be  released  without  danger  to  her- 
self, and,  notwithstanding  the  good  faith  of  the 
defending  physician,  damages  were  recovered 
against  him  and  the  sanitarium  of  which  he 
was  the  proprietor. 

The  court  said  that  the  plaintiff  was  not 
committed  to  the  care  of  the  defendants  by  any 
legal  proceedings  adjudging  her  insane,  and  her 
signing  the  paper  agreeing  to  the  rules  and 
regulations  was  not  irrevocable.  It  did  not 
subject  her  to  the  irresponsible  power  and  con- 
trol of  the  physician.  *' Evidently,''  said  the 
court,  "the  defendant  Carroll  believed  that  he 

18  Edwards  v.  Lamb,  69  N.  H.,  599,  45  Atl.,  480. 


Annotations  to  Chapter  III  181 

had  absolute  control  of  the  plaintiff  and  the 
right  to  imprison  her  if  she  opposed  his  orders 
or  will,  and  the  right  to  impose  on  her  whatever 
treatment  he  thought  best,  and  that  the  family- 
need  not  be  consulted  any  more  than  the  plain- 
tiff herself.  The  effect  of  being  at  the  head  of 
such  institution  is  very  often — too  often — to  ren- 
der the  person  in  charge  callous  and  autocratic, 
and  in  his  own  opinion  irresponsible  to  any- 
one. "^^ 

Joint  Liahility  of  Physicians  Serving  To- 
gether.— Two  physicians  independently  engaged 
by  the  patient  and  serving  together  by  mutual 
consent  necessarily  have  the  right,  in  the  ab- 
sence of  instructions  to  the  contrary,  to  make 
such  a  division  of  service  as  in  their  honest 
judgment  the  circumstances  may  require.  Each 
in  serving  with  the  other  is  held  answerable  for 
his  own  conduct,  and  as  well  for  all  wrongful 
acts  or  omissions  of  the  other  which  he  ob- 
serves and  lets  go  on  without  objection,  or  which 
in  the  exercise  of  reasonable  diligence  under  the 
circumstances  he  should  have  observed.  Beyond 
this  liability  does  not  extend.^'* 

19  Cook  V.  Highland  Hospital,  228  N.  C,  250,  84  S.  E.,  352. 
See  Hospitals  and  the  Lmo  (Rebman  Company,  New;  York),  p. 
90  et  seq. 

20  Morey  v,  Thybo,  199  Fed.,  760.  The  question  of  the  liability 
of  a  physician  as  a  partner,  or  for  the  acts  of  his  agent,  is  con- 
sidered ante,  p.  55  et  seq. 


ANNOTATIONS    TO    CHAPTER    IV 

REMUNEKATION 

The  Statute  of  Frauds. — This  statute,  orig- 
inally enacted  in  England  during  the  reign  of 
Charles  11.,^  has  been  duplicated  in  somewhat 
modified  form  in  most  of  the  United  States. 
Among  other  things  it  provides  that  no  action 
shall  be  brought  to  charge  a  person  upon  a 
special  promise  to  pay  for  the  debt,  default  or 
miscarriage  of  another  person,  unless  the  agree- 
ment upon  which  such  action  is  brought  or  some 
memorandum  or  note  thereof  shall  be  in  writing 
and  signed  by  the  party  to  be  charged  therewith 
or  some  other  person  by  him  lawfully  author- 
ized. Mention  is  made  here  of  the  statute  be- 
cause of  the  effect  that  it  may  have  upon  a 
contract  between  a  physician  or  surgeon  and 
another  person  respecting  the  remuneration  the 
former  is  to  receive  for  his  attending  a  case. 

For  example,  it  is  generally  held  that  if  a 
person  says  to  a  doctor,  ''Attend  X,  and  if  he 
fails  to  pay  you,  I  will,''  is  a  promise  to  an- 
swer for  the  debt  or  default  of  another  within 
the  meaning  of  the  Statute  of  Frauds,  and  must 
be  in  writing.     On  the  other  hand,  the  agree- 

1  29  Car.  II,  c.  3,  passed  1672. 

1^2 


AlJTNOTATIONS   TO    ChAPTER   IV  183 

ment  wonld  not  have  to  be  evidenced  by  a  writ- 
ing in  order  to  charge  such  person  if  he  should 
say  to  the  physician,  "I  will  pay  you  if  you 
will  attend  X/'  or,  *' Attend  X  and  charge  it 
to  me.'' 

Emancipation  of  Minor  as  Affecting  Liahil- 
ity  of  Parents  for  Medical  Services. — It  is  a 
general  rule  of  law  that  parents  must  furnish 
their  minor  children  with  the  necessaries  of  life. 
Medi£al„sexvigesaiNe  included.  If,  however,  the 
minor  is  emancipated  from  his  parents,  they  are 
not  responsible  for  his  medical  expenses.  A 
physician  recently  sued  a  man  for  compensation 
for  attending  his  minor  son,  and  the  suit  was 
defended  upon  the  ground  that  the  minor  was 
emancipated.  This  was  sought  to  be  established 
by  proof  of  the  follo^\dng  facts:  The  son  was  at 
the  time  of  his  injury  about  eighteen  years  old. 
He  was  living  at  home  with  his  parents.  For 
about  two  years  he  had  worked  out,  and  for 
about  one  year  had  worked  for  a  certain  com- 
pany. He  secured  the  job  himself,  made  his  own 
contract,  collected  his  own  wages,  kept  and  spent 
his  own  as  he  pleased,  and  paid  for  his  board 
at  home.  These  facts  were  held  not  to  show 
emancipation  of  the  minor.^ 

Age  and  Repiitatio7i  of  Physician  as  Basis 
for  Computing  Fee. — A  current  case^  permitting 

2Lufkin  V.  Harvey  (Minn.,  1915),  154  N.  W.,  1097.    See  ante, 
p.  91. 

sSuceeBiion  of  Percival  (La.,  1916),  72  So.,  467. 


184  The  Doctor  m  Court 

a  physician  to  recover  for  Ms  services  from  tlie 
estate  of  a  deceased  patient,  in  speaking  of  the 
action  of  the  lower  conrt  relative  to  the  measure 
of  recovery,  said,  *'Onr  learned  brother  was 
also  of  the  opinion  that  a  yonng  practitioner  has 
no  right  to  charge,  or  expect  to  be  paid,  the  fees 
charged  by  those  who  are  older  and  whose  repu- 
tations have  been  established,  and  hence  he  al- 
lowed opponent  but  $3  each  for  day  visits,  and 
$6  for  night  visits,  although,  according  to  the 
evidence,  the  customary  charges,  by  specialists, 
appear  to  be  $5  and  $10,  respectively.  It  may 
happen,  however,  that  the  knowledge  of  the 
schools  goes  beyond  that  upon  which  reputations 
have  been  founded,  and  that  the  later  graduate, 
bringing,  with  his  diploma,  the  latest  discoveries, 
is  more  competent  to  deal  with  a  particular  case 
than  the  earlier,  with  the  experience  of  a  past 
generation.  However  that  may  be,  any  physician 
has  the  right,  in  the  absence  of  a  custom  of  his 
oAvn,  to  charge  for  Ms  visits,  day  or  night,  at 
least  the  fee  sanctioned  by  the  custom  of  the 
community  in  which  he  lives;  nor  is  he  obliged, 
in  so  doing,  to  rate  himself  below  the  class  to 
which,  in  his  opinion,  he  properly  belongs;  and, 
in  such  a  case,  the  burden  rests  upon  the  patient, 
who  refuses  to  pay,  to  show  a  better  reason  for 
such  refusal  than  that  the  physician  is  compara- 
tively fresh  from  the  seats  of  learning." 


ANNOTATIONS   TO    CHAPTER    ^71 

CONFIDENTIAL   COMMUNICATIONS 

Hospital  Records. — The  records  of  a  hospital, 
whether  such  institution  be  public  or  private, 
are  privileged  and  immune  from  disclosure  in 
those  States  having  statutes  protecting  confi- 
dential communications  between  patients  and 
physicians.* 

Waiver  of  the  Privilege. — In  those  States  in 
which  communications  between  a  patient  and 
his  physician  are  protected  from  disclosure,  the 
doctrine  of  waiver  has  by  construction  been  en- 
grafted upon  the  statutes  giving  the  privilege.^ 
The  matter  is  considered  in  a  recent  decision.^ 
It  is  noted  therein  that  in  a  policy  of  insurance 
the  assured  may  contract  to  waive  the  privilege 
in  any  subsequent  proceeding.  Other  waivers 
are:  (a)  If  a  physician  to  a  party  in  an  action 
is  called  in  the  first  trial  by  the  adverse  side 
and  is  allowed  to  testify  without  objection,  then 
such  act  is  a  waiver  of  the  objection  in  any 

1  For  discussion  of  this,  matter,  and  citation  of  authorities, 
see  Hospitals  and  the  Load  (Rebman  Company,  New  York),  p.  80 
et  seq. 

2  See  ante,  pp.  97,  104-105. 

3  Epstein  v.  Penn.  R.  R.  Co.,  250  Mo.,  1,  156  S.  W.,  699,  Ann. 
Cas.,  1915A,  423  and  note. 

185 


186  The  Doctor  m  Court 

snbseqnent  trial.  (&)  If  the  adverse  side  exam- 
ine the  physician  of  the  plaintiff  as  to  the  facts 
of  treatment,  cross-examination  by  the  patient  *s 
attorney  as  to  the  patient's  condition  operates 
as  a  waiver,  (c)  By  failing  to  object  to  the 
question,  the  answer  to  which  would  involve 
disclosures  of  a  privileged  communication  be- 
tween the  physician  and  himself,  the  patient 
waives  the  privilege,  {d)  By  himself  giving  in 
evidence  voluntarily,  the  facts  and  nature  of  his 
ills  and  communication  had  with  and  acts  done 
by  his  physician  in  treating  him,  the  patient 
waives  the  privilege  to  object. 

Attestation  of  Will  of  Patient  hy  Physicians, 
— ^In  a  recent  will  contest  case*  the  testimony 
of  physicians,  who  witnessed  the  will  of  a  pa- 
tient, as  to  the  mental  capacity  of  the  patient  at 
the  time  of  its  execution  and  as  to  the  execution 
of  the  will,  was  objected  to  because  the  relation 
of  physician  and  patient  existed  and  a  statute 
protected  communications  between  them.  It  was 
held  that  the  evidence  was  admissible.  The  court 
said:  "Appellants  quote  the  provisions  of  our 
statute  which  reads  as  follows:  *A  regular  phy- 
sician or  surgeon  shall  not,  without  the  consent 
of  his  patient,  be  examined  in  a  civil  action  as 
to  any  information  acquired  in  attending  such 
patient,  which  was  necessary  to  enable  him  to 
prescribe  or  act  for  the  patient.'  Cases  are 
cited  to  the  effect  that,  under  such  statutes  as 

*  Point*  V.  Nier  (Waih.,  1916),  157  Pac,  44, 


Annotations  to  Chapter  V  187 

this,  it  is  held  that  the  privilege  is  personal 
with  the  patient,  and  that  it  applies  in  testa- 
mentary cases  and  cannot  be  waived  by  the 
heirs  and  personal  representatives.  We  do  not 
agree  with  the  reasoning  or  the  holding  of  the 
cases  cited.  Wigmore  on  Evidence,  Vol.  4,  § 
2390,  states  the  rule  as  follows:  *To  request  a 
physician  to  attest  one's  will  is  by  implication 
to  request  him  to  bear  testimony,  if  called  on, 
to  all  facts  affecting  the  validity  of  the  will, 
and  is  therefore  a  waiver.'  .  .  .  Our  opinion  is, 
therefore,  that  if  the  testatrix  requested  these 
physicians  to  attest  her  will  as  witnesses  or 
knomngly  assented  thereto,  she  waived  the 
privilege,  and  they  are  competent  to  testify  as 
to  the  execution  of  the  will  and  the  competency 
of  the  maker." 


ANNOTATIONS   TO    CHAPTER   VI 

THE    CRIMINAL    RESPON^SIBILITY    OF    THE    PROFESSION 

Responsibility  for  the  Death  of  a  Deformed 
Child  or  Monstrosity. — Does  a  medical  man  be- 
come criminally  responsible  by  causing  the  par- 
ents of  a  monstrosity  to  permit  it  to  die  by 
withholding  medical  or  snrgical  treatment  that 
would  forestall  that  event?  This  question  be- 
comes important  in  view  of  the  publicity  given 
to  the  recent  refusals  of  certain  physicians  to 
administer  a  remedy  to  keep  alive  defective, 
deformed,  degenerate  babies  under  their  care. 
Aside  from  any  moral  or  metaphysical  questions, 
it  may  be  noted  that  by  the  Twelve  Tables 
(Table  IV)  of  the  Roman  Law,  monsters  or 
deformed  children  were  to  be  put  to  death  by 
their  parents,  and  according  to  the  ancient  com- 
mon law  of  England  a  monster  could  not  in- 
herit property.  "If,'^  said  Lord  Coke,*  "the 
wife  be  delivered  of  a  monster,  which  hath  not 
the  shape  of  mankind,  this  is  no  issue  in  the 
law;  but  although  the  issue  hath  some  deformity 
in  any  part  of  his  body,  yet  if  he  hath  human 
shape  this  sufficeth/'    But  at  common  law  no 

1  Co.  Litt.,  29b. 

188 


ANNOTATIOIsrS  TO   CHAPTER  VI  189 

matter  how  deformed  a  child  may  be,  neither 
a  physician  nor  other  person  may  destroy  it. 

A  legal  journal,^  commenting  upon  this  mat- 
ter, notes  that  statutes  have  been  enacted  mak- 
ing it  a  criminal  offense  to  expose  a  child  under 
one's  legal  control  to  any  injury  to  health  or 
limb,  or  unnecessarily  expose  him  to  inclement 
weather.  If  a  parent  has  merely  a  duty  to  pre- 
serve the  life  and  health  of  a  child,  it  certainly 
would  not  seem  to  be  the  arbiter  of  its  death; 
and  one  agreeing  with  the  parent  that  neglect 
to  care  for  its  life  is  to  be  in  pursuance  of  a 
purpose  that  its  death  without  care  will  probably 
occur  is  opposed  to  every  principle  of  our  law. 
What  crime  may  this  be  if  death  results?  A 
parent  who  fails  to  provide  medical  attendance 
for  his  child  is  guilty  of  manslaughter  if  death 
results  from  such  failure.^ 

"^One  who  from  domestic  relationship  has  the 
custody  of  an  imbecile  child,  or  any  child  hav- 
ing an  incapacity  of  mind  or  body,  is  guilty  of 
manslaughter,  if  by  culpable  negligence  he  lets 
the  helpless  creature  die.^  It  is  a  principle  of 
the  criminal  law  that  taking  the  life  of  one 
affected  with  an  incurable  disease  in  no  way 
extenuates  the  guilt  of  the  slayer.^  "In  con- 
clusion,'*  says  this   journal,  "we   may  say  if 

2  81  Central  Law  Journal,  879. 

sStehr  v.  Staie,  92  Neb.,  755,  139  N.  W.,  676,  45  L.  R.  A. 
(N.  S.),  559. 

*Regina  v.  Cox,  1.3  Cox  Crim.  Cas.,  75, 
5  21  Am,  &  Eng.  Encyc.  Law,  95, 


190  The  Doctor  in  Court 

the  physician  assumes  to  act  for  the  parent, 
he  stands  in  loco  parentis  and  is  bound  as  the 
parent  would  have  been  bound  for  neglect  to 
save  the  life  of  the  child. '* 


ANNOTATIONS    TO    CHAPTER    VII 

QUALIFICATIONS 

Herbalist  as  Medical  Practitioner. — ^A  Chinese 
herb  doctor  was  convicted  of  practicing  medicine 
without  a  license.  It  was  provided  that  nothing 
in  the  statute  should  be  construed  to  prohibit 
**the  sale  or  administration  of  proprietary  or 
domestic  family  remedies,'*  etc.  It  was  admitted 
that  the  defendant  had  no  license.  He  main- 
tained a  ** Chinese  Herb  Institute"  and  adver- 
tised in  the  newspapers.  He  set  up  as  a  de- 
fense that  the  herbs  were  domestic  family  reme- 
dies. The  court  did  not  take  this  view  of  it, 
but  said  the  compound  or  concoction  was  not 
something  commonly  kept  by  non-professional 
persons  in  their  homes,  or  of  which  they  have 
general  knowledge.  *^  Instead  of  calling  it  a 
domestic  family  remedy,  it  is  better  to  call  it 
by  its  right  name — a  subterfuge  to  deceive  the 
credulous  and  afflicted.  ...  A  mixture  of  four- 
teen different  herbs,  equally  efficacious  for  rheu- 
matism, paralysis,  appendicitis,  piles  and  pim- 
ples, .  .  .  their  curative  powers  so  familiar  as 
to  be  understood  only  by  Chinese  Expert  Herb- 

191 


192  The  Doctor  in  Couet 

alists  who  acquired  their  knowledge  of  the  pre- 
cious secrets  only  through  tradition  and  by  sci- 
entific learning  so  modern  as  to  have  been  handed 
down  generation  after  generation  for  centuries 
by  Chinese  Herbalists  and  ancestors  of  the  de- 
fendant, and  which  are  so  general  and  so  com- 
mon as  to  be  had  only  at  a  Chinese  store  in 
San  Francisco,  or  at  a  Chinese  Institute  con- 
ducted by  a  Chinese  Expert  Herbalist,  can  in 
no  sense  be  regarded  as  a  domestic  family  rem- 
edy. .  .  .  He  offends  though  he  may  give  or 
administer  but  castor  oil,  or  Hostetter*s  bitters, 
or  a  boiled  concoction  of  bark,  roots  or  herbs, 
or  may  give  nothing,  and  only  advise  exercise  or 
rest.  .  .  .  The  claim  made  that  he  charged  only 
for  the  herbs  and  nothing  for  the  diagnosis, 
consultation  or  treatment  is,  like  his  concoction, 
a  mere  pretense,  and  an  attempt  to  exculpate 
himself  by  bookkeeping.  As  well  say  one  charged 
nothing  for  an  operation,  but  charged  $500  only 
for  the  bandages  and  antiseptics."* 

Chiropractor. — A  physical  examination  of  the 
vertebrae,  a  decision  whether  they  are  in  normal 
position  or  not,  and  strong  pressure  upon  them 
with  the  end  of  changing  the  position  with  refer- 
ence to  each  other  of  those  found  to  be  irregular, 
and  thereby  relieving  pressure  on  nerves,  may 
be  found  to  have  such  relation  to  the  cure  or 
prevention  of  disease  or  the  relief  of  pain  as  to 
constitute  the  practice  of  medicine  within  the 

1  state  V.  Yee  Foo  Lun  (Utah,  1915),  147  Pac,  488. 


Annotations  to  Chapter  VII  193 

meaning  of  a  statute  forbidding  persons  so  to 
do  without  being  authorized.^ 

Right  of  Unlicensed  Person  to  Perform  Sur- 
gical Operation. — The  right  of  persons  to  per- 
form or  attempt  to  perform  surgical  operations 
upon  others,  in  the  honest  and  reasonable  belief 
that  such  operations  are  necessary  in  order  to 
save  the  life  of  those  needing  such  ministrations, 
is  not  confined  to  those  who  are  licensed  by  the 
state  to  perform  such  operations.  Any  person 
actuated  by  the  reasonable  belief,  based  upon 
the  circumstances  that  such  operation  is  neces- 
sary to  save  life,  and  who  acts  with  due  caution 
and  circumspection,  will  not  be  guilty  of  man- 
slaughter if  death  results.^  However,  it  would 
seem  as  if  the  necessity  must  be  extremely 
urgent  and  the  services  of  a  license^^racfit^ipn^ 
impossible  to  secure. 

2  Commonwealth  v.  Zimmerman  (Masa.,  1915),  108  N.  E.,  893. 
To  the  same  effect  see  State  v.  Miller,  146  Iowa,  521,  124  N.  W., 
167;  State  v.  Johnson,  84  Kan.,  411,  114  Pac,  390.  North  Dakota, 
has  made  legislative  provision  for  licensing  of  chiropractors,  and 
has  created  a  board  of  examiners  composed  of  such  practitioners. 
— Sess.  Laws,  1915,  Ch.  128.  For  case  against  a  college  of  chiro- 
practic for  unauthorized  conferring  of  degree,  see  Commonwealth 
V.  New  England  College  of  Chiropractic  (Mass.,  1915),  108  N.  E., 
895. 

3  People  V.  Hunt  (Cal.,  1915),  147  Pac.,  476. 


THE   COPTBIGHTS   OF   THIS   BOOK,   IN   AIX   ENGUSH-SPEAKINC 
COUNTBIES,  ABE  OWNED  BT  BISMAN  COMFANT,  NEW  TOIO:. 


TABLE  OF  CASES  CITED 


Alton    V.    Medical    Examiners, 

131 
Akridge  v.  Noble,  28 
Almond  v.  Nugent,  31 
Alsop  V.  Bowtrell,  20 
Ashworth  v,  Kittridge,  154 

Baird  v.  Morford,  51 
Baker  v.  Hancock,  34,  35,  74 
Baker  v.  Wentworth,  57 
Bakker  v.  Welsh,  175 
Ballou  V.  Prescott,  46 
Barbour  v.  Martin,  4© 
Barfield     v.     South     Highland 

Infirmary,   174 
Barnes  v.  Means,  28 
Barnett's  Adm'r.  v.  Brand,  168 
Beatty  v.  CullingAvorth,  177 
Beck  V.  German  Klinik,  41 
Becker  v.  Janinski,  33 
Berry  v.  Pusey,  88 
Best  V.  McAuslan,  91 
Bibber  v.  Simpson,  134 
Bigney  v.  Fisher,  31 
Bogle  V.  Winslow,  58 
Bonnet  v.  Foote,  28,  74 
Boyd  V.  Sappington,  91 
Boyle  V.  Northwestern  Mutual 

Relief  Asso.,  102 
Bragg  V.  State,  136 
Briesenmeister       v.       Supreme 

Lodge,  105 
Brown  v,  French,  68 
Bruendl,  in  re  Will  of,  101 
Burney  v.  Children's  Hospital, 

69 

Carpenter  v.  Blake,  32.  39,  42, 

51 
Chicago  V.  Wood,  81 
Chorley  v.  Bolcot,  49,  79,  80 


m 


Clark  V.  Commonwealth,  156 
Clark  V.  State,  98,  99 
Collier  v.  Simpson,  154 
Colorado   Fuel   &   Iron   Co.   v. 

Cummings,  99 
Commonwealth  v.  Bangs,  112 
Commonwealth  v.  Jewelle,  135 
Commonwealth  v.  Johnson,  151 
Commonwealth  v.  New  England 

College  of  Chiropractice,  193 
Commonwealth  v.  Parker,  111, 

113 
Commonwealth    v.    Pierce,    55, 

118 
Commonwealth    v.    Porn,    130, 

134 
Commonwealth  v.  Snow,  112 
Commonwealth    v.     Thompson, 

117 
Commonwealth      v.      Webster, 

123,  124 
Commonwealth  v.  Wood,  112 
Commonwealth  v.  Zimmerman, 

193 
Cook  V.  Highland  Hospital,  181 
Coombs  V.  King,  170 
Cotnam  v.  Wisdom,  81,  84,  85, 

87 
Coulson  V.  Disborough,  160 
Craig  V.  Chambers,  32 
Crane  v.  Baudouine,  80,  87 

Darcy  v.  Presbyterian  Hospi- 
tal, 69 

Dashiell  v.  Griffith,  46 

Davis  V.  Kerr,  168 

Deaton  v.  Lawson,  26 

De  May  v.  Roberts,  61 

Dent  V.  State  of  West  Vir- 
ginia, 127,  129,  130 

Dickenson  v.  Fitchburg,  13 


196 


Table  of  Cases  Cited 


Dorion  v.  Jacobson,  87 
Dougherty  v.  People,  112 
Doyle  V.  Owen,  74 
Doyle  V.  Singer  Sewing  Machine 

Co.,  172 
Du  Bois  V.  Decker,  32,  33,  35, 

52,  58,  68 
Duches3    of    Kingston's    Trial, 

97 
Dunbauld  V.  Thompson,  28 

Edington  v.  Mutual  Life  Ins. 

Co.,  98,  102,  104 
Edwards  v.  Lamb,  180 
Ely  V.  Wilbur,  82 
Epstein  v.  Penn.  E.  R.  Co.,  185 
Ewing  V.  Goode,  37,  38 

Feeney  v.  Spaulding,  34,  35 

Ferguson  v.  Hubbell,  6 

Foley  V.  Phelps,  70,  71 

Force  v.  Gregory,  27,  28,  40, 
41 

Foster  v.  Police  Commission- 
ers, 130 

Frisk  V.  Cannon,  173 

Gates  V.  Fleischer,  31 
Geiselman  v.  Scott,  51 
George  v.  Shannon,  171 
Gillette  v.  Tucker,  28,  31,  37, 

67 
Gladwell  v.  Steggall,  32 
Goble  V.  Dillon,  47 
Gore  V.  Brockman,  170 
Gosnell  v.  State,  130 
Graham  v.  Gautier,  42 
Grainger  v.  Still,  28,  37,  41 
Gramm  v.  Boener,  30,  45,  50, 

51,  55 
Green  v.  Higenbotam,  80 
Griflfith  V.  Charlotte,  etc.,  R.  R. 

Co.,  70 
Guptill  V.  Verback,  106 

Hackett  v.  Hackett,  70 

Haire  v.  Reese,  31,  37,  42,  50, 

51 
Hales  V.  Raines,  28,  54 
Hall  V.  Allen,  89 


Hall  V.  Semple,  67 
Hancke  v.  Hooper,  5ff 
Hardenstein  v.  Brien,  85 
Hardiman  v.  Brown,  15 
Harriott  v.  Plimpton,  60 
Hawker  v.  New  York,  130 
Heath  v.  Glisan,  35 
Helland  v,  Bridenstine,  59 
Henslin  v.  Wheaton,  170 
Hess  V.  Lowrey,  56 
Heuston  v.  Simpson,  105 
Hewitt  V,  Charier,  134 
Hewitt  V.  State  Board,  131 
Hibbard  v.  Thompson,  50,  53 
Higgins  V.  McCabe,  33 
Hitchcock  V.  Burgett,  31,  56 
Holmes  v.  McKim,  91 
Hood  V.  Moflfett,  165 
Howard  v.  Grover,  31 
Howell  V.  Goodrich,  82 
Hyrne  v.  Erwin,  56 

Jackson  v.  Burnham,  36,  38,  39 
Jacksonville   Street   R.   Co.   v. 

Chappell,  51 
Jesserich  v.  Walruff,  90 
Johnson  v.  Richmond,  etc.,  Ry. 

Co.,  154 
Jonas  V.  King,  84 
Jones  V.  Angell,  28,  50 
Jones  V.  Tucker,  147 

Kearns  v.  Caldwell,  91 
Keller  v.  Lewis,  56 
Kendall  v.  Brovra,  27,  48 
Kentucky  Traction  &  Terminal 
Co.  V.  Humphrey,  153 

Ladd  V.  Witte,  81 
Lamphier  v.  Phipos,  31 
Langdon  v.  Humphrey,  56 
Larson  v.  Chase,  72 
Lawson  v.  ConaAvay,  42,  52 
Leighton  v.  Sargent,  28,  33,  51 
Lewis  V.  Dwinell,  74 
Link  V.  Sheldon,  37 
Logan  V.  Field,  82 
Lufkin  V.  Harvey,  183 
Luka  V,  liowrie,  176 


Table  op  Cases  Cited 


197 


Macomber  v.  Board  of  Health, 
131 

Madden  v.  Blain,  89,  91 

Mallen  v.  Boynton,  35 

Marshall  v.  Brown,  155 

Martin  v.  Courtney,  41,  68 

McCallen  v.  Adams,  63 

McCandless  v.  McWha,  30,  31, 
32,  37,  42,  50 

McCraeken  v.  Smathers,  28 

McKleroy  v.  Sewell,  82 

McKnight  v.  Detroit,  etc.,  R. 
R.  Co.,  86 

McMurdock  v.  Kimberlin,  28, 
35 

McNevins  v.  Lowe,  32 

McPherson  v.  Cheadell,  81 

Messenbach  v.  Southern  Coop- 
erage Co.,  90 

Miller  v.  ToUes,  166 

Mitchell  V.  Commonwealth,  113 

Mohr  V.  Williams,  65 

Morey  v.  Thybo,  181 

Morris  v,  Morris,  105 

Morrisett  v.  Wood,  84 

Moses  V.  United  States,  151 

Mott  V.  Ice  Co.,  105 

Murdock  v.  Walker,  58 

Murray  v.  Williams,  81 

Musser  v.  Chase,  33 

Myer  v.  Supreme  Lodge,  99 

Myers  v.  Holborn,  56 

Nanny  Simpson's  Case,  116 
Nelson  v.   Harrington,   31,   33, 

41,  53 
Nelson  v.  Nederland  Life  Ins. 

Co.,  105 
Nesbit  V.  People,  98,  99 
Newhouse  v.  Miller,  52 
Norton  v.  Rourke,  90,  92 

O'Hara  v.  Wells,  37 
Orr  V.  Meek,  81 

Paige  V,  Morgan,  84 

Parks  V.  State,  138 

Patten  v.  Wiggin,  32,  35,  38, 

39,  41 
Payne  v.  State,  139 


Peck  V.  Hutchinson,  31,  32,  39, 

80 
Peck  V.  Martin,  34,  79 
Penn  Co.  v.  Marion,  104 
People  V.  Cole,  100 
People  V.  De  France,  101 
People  V.  Dickerson,  160 
People  V.  Hasbrouck,  130 
People  V.  Hunt,  193 
People  V.  Kemmler,  161 
People  V.  Lustig,  2 
People  V.  Phippen,  130,  138 
People  V.  Schuyler,  99 
People  use  of  Board  of  Health 

V.  Smith,  138 
Pettigrew  v.  Lewis,  34,  74 
Pierce  v.  Swan  Point  Cemetery, 

70 
Pike  V.  Honsinger,  27,  28,  32, 

42 
Piper  V.  Menifer,  43 
Points  V.  Nier,  186 
Potter  V.  Warner,  27,  65 
Pratt  V.  Davis,  62,  63,  65 
Prince  v.  McRae,  86 

Queen  v.  Fox,  70 

Raymond    v.    Burlington    Ry. 

Co.,  99 
Reetz  V.  Michigan,  128 
Eegina  v.  Bodle,  160 
Regina  v.  Cox,  189 
Regina  v.  Holden,  160 
Renihan  v.  Dennin,  99,  101 
Rex  V.  Long,  115 
Rex  V.  Phillips,  113 
Rex  V.  Simonds,  160 
Rex  V.  Williamson,  116 
Reynolds  v.  Graves,  34 
Rice  V.  State,  117 
Rich  worth  v.  Moss,  174 
Robinson  v.  Campbell,  83 
Rolater  v.  Strain,  177 
Rowe  V.  Raper,  91 
Ruble  V.  Busby,  179 

Sanderson  v.  Holland,  57 
Sauers  v.  Smits,  171 
Sceva  V,  True,  85 


198 


Table  of  Cases  Cited 


Sears  v.  Prentice,  27 
Selph  V.  State,  160 
Shockley  v.  Tucker,  171 
Slater  v.  Baker,  166 
Sloan  V.  N.  Y.  C.  K.  Co.,  101 
Small  V.  Howard,  27,  29,  31 
Smart  v,  Kansas  City,  98,  99 
Smith  V.  Hyde,  82 
Smith  V.  Overby,  61 
Smith  V.  Watson,  90 
Sontag  V.  Ude,  179 
Springer  v.  By  ram,  104 
Staloch  V.  Holm,  66,  76 
Starrett  v.  Miley,  90 
State  V.  Baldwin,  154,  155 
State  V.  Biggs,  137 
State  V.  Call,  130 
State  V.  Cooper,  113 
State  V.  Edmunds,  128,  130 
State  V.  Gile,  55,  121 
State  V.  Hardister,  116,  120 
State  V.  Heath,  137 
State  V.  Heffernan,  139 
State  V.  Johnson,  193 
State  V.  Lester,  172,  173 
State  V.  Mylod,  127,  132,  137 
State  V.  Reynolds,  120 
State  V.  Schulz,  117 
State  use  of  Janney  v.  House- 
keeper, 64,  66 
State  V.  Van  Doran,  139 
State  V.  Wilcox,  130 
State  V.  Yee  Foo  Lun,  192 
Stehr  V.  State,  189 
Stern  v.  Lanng,  35 
Styles  V.  Tyler,  87 
Succession  of  Haley,  83 
Succession  of  Percival,  183 


Sullivan  v.  McGraw,  67 
Sweeney  v.  Erving,  170 

TefTt  V.  Wilcox,  31,  73 
Territory  v.  Yee  Dan,  122 
Thompson    v.    Van    Lear,    128, 

129,  142 
Thome    v.    Worthing    Skating 

Rink  Co.,  159 
Thorpe  v.  R.  &  B.  R.  R.  Co., 

129 
Tomer  v.  Aiken,  37 
Tompkins  v.  Pacific  Mut.  Life 

Ins.  Co.,  28 

Utley  V.  Burns,  28,  34 

Van  Skike  v.  Potter,  28 
Vilas  V.  Downer,  80 

Weitz  V.  R.  R.  Co.,  101 
Wells  V.  Ferry-Baker  Co.,  28 
West  V.  Martin,  36,  67 
White  V.  Carroll,  41 
White  V.  Mastin,  88 
Whitesell  v.  Hill,  27,  35,  51,  82 
Williams  v.  Brickell,  89 
Williams  v.  Le  Bar,  35,  67 
Williams  v.  Poppleton,  75 
Williams  v.  Williams,  70 
Wilmot  V.  Howard,  52 
Witches  Case,  20 
Witty  V.  State,  138 
Wood  V.  Barker,  86,  87 
Wood  V.  Clapp,  28 
Woodward  v.  Hancock,  73 

Young  V.  Fullerton,  67 


GENERAL  INDEX 


Abandonment  of  case,  46 
Abortion,  106,  111 

distinguished    from    infanti- 
cide, 110 
Massachusetts    statute,     113, 

114 
what  constitutes,  110 
Admissions  of  patient,  103,  104 
Advice  to  patient,  duty  regard- 
ing, 45,  55 
liability  for  false,  179,  180 
Agency,  principles  of,  applicable 
to  physicians,  56,  57 
See  Joint  Liability 
Agent   of   physician,    140,    141, 

142 
American  Institute  of  Criminal 
Law    and    Criminology, 
156 
model  bill  of,  regulating  ex- 
pert   testimony,    156    et 
seq. 
American  Medical   Association, 

132 
Anatomy  statutes,  71 
Anesthetic,  use  of,  58,  175,  176 
Ardern,  Dr.  John,  83 
Assistance,  refusal  of,  as  neg- 
ligence, 65 
Assistant,  liability  of  physician 
to,  179,  180 
See  Nurse 
Attendance  upon  patient, 
abandonment,  46 
degree  of  care  required  to  de- 
termine necessity  for,  46 
no  obligation  to  undertake,  45 
qualified  contract  of,  165,  166 
special    contract    as    to,    46, 

165,  166 
substitute  in,  56,  165,  166 
when  required,  45,  46,   165, 
166 


Autopsy,  permission  to  perform, 
72 
unsanctioned,  69,  70,  71,  72 
when  lawful,  71,  72 
See  Corpse 

Barbers,  Company  of  Surgeons 

and,  127 
Barnes,  Judge  Albert  C,  156 
Black's  Law  Dictionary,  26 
Blackstone,  Sir  William,  24,  25, 

111 
Bonesetter  as  practitioner,  133 
Books,  use  of,  by  witness,  3,  20, 

153,  154,  155,  156 
See  Medical  Books 
Boston  Herald,  83 
Burden  of  proof,  51,  66 

Campbell,  Lord  Chief  Justice,  6 
Care,  eflfect  of,  on  remuneration, 
81,82 
presumption  as  to,  51 
requirements    as    to,   27,    31, 
32,  36,  49,  73,  167,  169, 
170 
depending  on  compensation, 

32,  33,  60 
depending  on  disease  or  in- 
jury, 33,  34 
depending  on  locality,  28, 

29,  30,  169 
instructions,  41,  42 
specialists,  34,  35,  170 
Central  Law  Journal,  143,  189 
Charles  II,  182 
Charles  V,  Emperor,  19 
Child.     See  Parent  and  Child, 

Minor 
Childbirth  as  disease,  135 
Chinese  physicians,  94,  95,  191, 

192 
Chiropractice  college,  193 


m 


200 


General  *Index 


Chiropractor    as    practitioner, 
192,  193 

Christ  called  "Good  Physician," 

137 
Christian   Scientist   as   practi- 
tioner, 137 
Civil  responsibility,  47  et  seg. 
for  communicating  disease,  59 
for  deceit  of  patient,  61,  62 
for    departure   from   specific 

operation,  177,  178 
for  error  in  diagnosis,  60,  61 
for  failure  to  attend  patient, 

46,  165,  166 
for  false  advice,  179,  180 
for  incorrect  prescription,  57 
for  unsanctioned  autopsy,  69, 

70,  71,  72 
historical,  48,  49 
precautions  against,  65 
See  Agency,  Attendance,  Elec- 
trical   appliances.    Joint 
liability.  Negligence,  Op- 
eration, Partner 
Clairvoyant  as  practitioner,  41, 

134 
Coke,  Lord,  26,  188 
College  of  Physicians,  125 
Commitment   to  hospital,    157, 

158 
Common  law  of  England,  23 

See  England 
Compensation,  11,  12 

See  Remuneration 
Confession,  124 

Confidential  communications,  96 
et  seq* 
hospital  records  as,  185 
common  law  rule  respecting, 

96,  97 
elements  of,  106 
manner  of  acquiring  informa- 
tion, 101,  102 
waiver  of,  105,  185,  186,  187 
Constitution     of     the     United 

States,  129 
Consultation  as  protection,  65 
Contracts,  elements  of,  25,  26 
implied,  34 
kinds  of,  24 


Contracts,  of  attendance,  45,  46, 
165,  166 
of  bankrupts,  26 
of  drunkards,  26 
of  insane  persons,  26 
of  minors,  26 
of   physicians   and   surgeons, 

27 
to  do  illegal  acts,  27 
See  Remuneration 
Cooley,  Thomas  M.,  23,  57 
Corpse,  mutilation  of,   69,   70, 
71,  72 
right  to,  as  property,  70,  71 
See  Autopsy 
Crime,    what   constitutes,    108, 

149 
Criminal  responsibility,  108  et 
seq. 
for  practice  without  license, 

132 
See     Abortion,      Infanticide, 
Misadventure,     Monster, 
Murder,  Negligence 
Cross-examination,  2,  3,  4,  10, 
12,  13,  148,  149,  151,  158 
See  Evidence,  Testimony,  Wit- 
ness 
Cure,  presumption  as  to,  37,  38, 
170 
warranty  of,  38 


Damages,  on  recovery  of,  75,  92 
See  Civil  Responsibility 

Dead  bodies.     See  Corpse 

Deceit  of  patient,  61,  62 

Dentist,  101 

Diagnosis,  error  in,  60,  61 

Discharge  of  physician,  46 

Discharging  case.    See  Attend- 
ance 

Diseases,  communication  of,  43, 
44,  58,  59 
reporting  of,  44 

Dissection.    See  Anatomy  Stat- 
utes 

Doubt,  resolved  in  favor  of  de- 
fendant, 73,  74 

Druggist,  57 


General  Index 


201 


Duty  of  profession,  47 

See  Care,  Skill 
Dying  declarations,  3 

Electrical  appliances,  injury  re- 
sulting from  use  of,  169, 
170,  171,  172,  173 
Ellenborough,  Lord,  116 
Emergency    Justifies    operation 
without  consent,  64,  65, 
176 
England,  laws  of,  19,  22,  23,  48, 
49,  71,  79,  113,  115,  125, 
126,  142,  150,  178,  188 
Epidemic,  43 
Estate,  recovery  of  fee  from,  85, 

86 
Evidence,  confidential  communi- 
cations, 96  et  seq. 
expert,  1,  2,  3,  5,  6,  76,  86, 
147  et  seq. 
history  of,  2,  18,  19,  20 
reformation  of,  6,  7,  8,  20, 

21,  156  et  seq. 
remuneration  for,  94,  95 
hearsay,  3 
medical,  1 
non-expert,  1 
of  negligence,  73,  74,  170, 171, 

173,  178,  179 
weight  of,  in  civil  cases,  74, 

75 
See  Expert  Testimony,  Testi- 
mony, Witness 
Examination  of  witnesses,  cross, 
2,  3,  4,  10,  11,  148,  150, 
152,  158 
direct,  2,  8,  148,  149 
re-direct,  2,  151 
See   Cross-examination,   Wit- 
ness 
Experiment    by    physician    or 

surgeon,  40,  166,  167 
Expert    testimony.      See    Evi- 
dence,   Testimony,    Wit- 
ness 
Eye-expert,  138 

False  imprisonment  of  patient, 
180,  181 


Field,  Mr.  Justice,  127 
Fitzherbert,  Sir  Anthony,  46 
Foster,  Judge  William  L.,  21 
Frauds,  Statute  of,  182,  183 
Friedman,  Lee  Max,  21 

George  III,  126 

Germany,  expert  testimony  in, 
19 

Hale,  Lord,  112 

Hale,  Philip,  83 

Halford,  Sir  Henry,  154 

Halsbury's  Laws  of  England, 
178 

Hamurabi,  Code  of,  78,  79,  82 

Hand,  Learned,  19 

Harper,  Prof.  Robert  F.,  79 

Harvard  Law  Review,  21,  178 

Harvard  Medical  School,  123 

Henry  VI,  82 

Henry  VIII,  125 

Herbalist  as  practitioner,  191, 
192 

Hippocrates,  125 

History  of  law,  22 

Hochheimer,  Lewis,  142,  143 

Holmes,  Oliver  Wendell,  140 

Hospitals,  commitment  to,  157, 
162 
false   imprisonment   in,    180, 

181 
records  of,  185 

Hospitals  and  the  Law,  174,  181, 
185 

Homicide.  See  Infanticide,  Man- 
slaughter, Misadventure, 
Murder,  Negligence 

Husband  and  wife,  communica- 
tions between,  96 
entitled  to  damages  for  au- 
topsy on  wife,  70 
sanctioning  operation  on  wife, 

64 
withholding    medical    assist- 
ance from  wife,  64 

Hypothetical   question,    13,    14, 
76,  146,   151,   152,   153 
See  Evidence,  Testimony,  Wit- 
ness 


202 


General  Index 


Infanticide,  distinguished  from 
abortion,  110 
responsibility    for    death    of 

monster,    188,    189,   190 
See     Manslaughter,     Miscar- 
riage,       Misadventure, 
Murder 
Insanity,  67,  109,  156  et  seq. 
Instructions,    duty    of    patient 
to  follow,  42,  43 
duty  of  physician  to  give,  42, 

43 
failure  to   comply   with,   50, 
51,  177,  178 
Instruments,        communicating 

disease,  59 
Insurer  of  results,  physician  as, 

38,  170 
Intent,  criminal,  108,  109 

Jaggard,  Judge,  68 

Jessel,  Sir  George,  159 

Joint    liability    of    physicians, 

181 
See  Agency,  Partner 
Judgment,    obligation    to    use 

best,  35,  36,  37,  66,  67, 

68,  69 
Jury,  2 
province  of,  13,  18,  72 

Keedy,  Edwin  E.,  156 
Kent,  Chancellor,  25 
Kenyon,  Lord  Chief  Justice,  80 
Kinkhead  on  Torts,  63 

Learning,   requirements   as   to, 
27,  28 

depending  on  locality,  28,  29, 
30 

depending  on  scientific  knowl- 
edge, 31,  170 

specialists,  34,  35,  170 
License  to  practice,  28,  125  et 
seq.,  191,  192,  193 

revocation  of,  131 

See  Practice,  Medicine 

Magna  Charta,  23 


Magnetic  healer  as  practition- 
er, 138 

Malpractice.  See  Civil  Respon- 
sibility, Criminal  Ee- 
sponsibility 

Manly,  Judge,  73 

Mansfield,  Lord,  97 

Manslaughter,  114,  115,  116, 
117,  118,  119,  120,  189 

McClelland  on  Civil  Malprac- 
tice, 54,  67 

Mead,  Dr.,  80 

Medical  Act,  49,  79 

Medical  books,  3,  20 

excluded  from  evidence,  153, 

154,  155,  156 
impeaching  witness  by,   155, 

156 
refreshing  recollection  from, 
155 

Medical  Jurisprudence,  Society 
of,  9 

Medicine,  definition  of,  132 
practice  of,  132,  135,  136, 137 
See  Patent  Medicines 

Memory,  refreshing,  16,  17,  155 

Messenger  of  patient  not  liable 
for  medical  services,  89, 
90 

Meyer,  Prof.  Adolf,  156 

Midwife  as  practitioner,  116, 
134 

Mikel,  William  E.,  156 

Miller,  Justice,  98 

Minor,  contracts  of,  25,  26 
emancipation  of,  183 
operating  upon,  173,  174,  175, 
176 

Misadventure,  114,  120 

Miscarriage,     procuring,      113, 
114,  115 
See  Abortion 

Monks  as  practitioners,  79 

Monster,  responsibility  for 
death  of,  188,  189,  190 

Moyer,  Dr.  Harold  N.,  156 

Murder,  114,  115,  116,  117,  118, 
119,  120 

"Murphy  Treatment,"  167 


General  Index 


203 


Negligence,  contributory,  49  et 
seq. 
criminal,  108  et  seq. 
degrees  of,  47,  48,  49 
in  operating,  74,  168,  189 
in    use    of    electrical    appli- 
ances, 169  et  seq. 
liability  for,  33 
of  third  persons,  55,  56,  57 
New  York  Medical  Journal,  160 
Notes,  use  of,  by  witness,  16, 17 

See  Memory 
Nurse,   instructions   to,   41,   42 
liability  of  physician  for  acts 

of,  57 
reliance  upon  statements  of, 

167 
See  Assistant 

Oath  of  witness,  4,  5 
Oculist  as  practitioner,   35 
Operations,  authorized,  63,  64, 
65 
duty  in  performance  of,  167, 

168 
duty  to  advise  against,  45,  55 
evidence  of  negligence  in,  74, 

168,  169 
presumption  as  to  necessity 

for,  66,  176 
unauthorized,  62,  63,  64,  65, 

173  et  seq. 
unlicensed    person     perform- 
ing, 193 
See  Care,  Negligence,  Skill 
Opinion,  expert,  3,  6,  18,  20,  147 

et  seq. 
Osteopath  as  practitioner,  136 

Parent  and  child, 

emancipation  of  child,  183 
liability  of  parent  for  medi- 
cal expenses,  91,  183 
unsanctioned      autopsy       on 

child,  69 
unsanctioned     operation     on 
child,  173,  174,  175,  176 
Park,  Judge,  115 
Partner,  physician  as,  56,  57 
See  Joint  Liability 


Patent  medicines,  139,  140 
Patient,     duty    to    follow    in- 
structions, 42,  43 
idiosyncrasies  of,  58 
reliance  upon  advice  of  phy- 
sician, 179,  18C 
rights  of,  27 

regarding  deception,  61,  62 
Phraseology,  medical,  8,  9 
Physical  examination,  17,  18 
Poison,  evidence  as  to,  3,  4 

given  by  mistake,  57 
Poore,  George  V.,  16 
Practice,  criterion  of,  40,  41 
license  to,  125  et  seq. 
mode  of,  38,  39,  40 
state  regulation  of,  127 
what  constitutes,  132  et  seq. 
See  Medicine 
Pregnancy,  examination  as  to, 
99,   100 
See  Quick  with  Child 
Prescription,  error  in,  57 
Presumptions,  73,  74,  109 
Prince,  Dr.  Morton,  156 
Privacy  of  patient,  61,  62 
Privileged    communications,    to 
physicians  and  surgeons, 
what  constitutes,  99 
depending    on    compensation, 

98 
See  Confidential  Communica- 
tions 
Proximate  cause  of  injury,  52 
Public  policy,  96 


Qualifications      of     physicians 

and  surgeons,  125  et  seq., 

191  et  seq. 
Questions,  dilemma,  15 

hypothetical,  13,  14,  76,  146, 

151,  152,  153 
incriminating,  16 
leading,   15,   149 
of  fact,  72,  73 
of  law,  72,  73 
3ee      Evidence,      Testinjony, 

Witness 


204 


General  Index 


Quick  with  child,  distinguished 
from  pregnancy,  113 
in  general,  112  et  seq. 

Eadiographs,  11,  171,  172 
Records,  form  of,  17,  18 
hospital,   185 
importance  of  keeping,  16 
See  Memory 
Redfleld,  Chief  Justice,  129 
Remedy,  use  of  one  not  gener- 
ally known,  166,  167 
Remuneration,  78  et  seq.,  182 
et  seq. 
ability  to  pay,  82,  83,  84,  85 
action  for,  when  bar  to  action 

for  negligence,  92,  93 
depending  on  age  and  repu- 
tation, 183,  184 
depending  on  cure,  81,  82 
depending  on  license,   81 
depending  on  skill  and  care, 

81,  82 
expert  testimony  as  to,  86 
liability  of  third  persons  for, 

87  et  seq.,  183 
of  expert  witness,  93,  94 
or  gratuity,  86 
Statute   of    Frauds    relating 

to,  182,  183 
suits  to  recover,  94 
Report  of  mental  or  physical 
condition  of  persons,  17, 
18,  157,  158,  162,  163 
Reporting  disease,  44 
Results  of  treatment,  responsi- 
bility for,  58 
Risk,  assumption  of,  53,  54,  55 
Roman  law,  49,  188 
Rugg,  Chief  Justice,  130 

Scotland,  law  of,  163 
Schools  of  medicine,  41 
Services,  gratuitous,  85,  86 
Shaw,  Chief  Justice,  111 
Shearman  and  Redfleld  on  Neg- 
ligence, 54 
Skill,  effect  of,  on  remunera- 
tion, 81,  82 


Skill,  presumption  as  to,  51 
requirements  as  to,  27,  30,  31, 
73,  114,  115,  167,  169 
depending     on     compensa- 
tion, 32,  33,  60 
depending  on  disease  or  in- 
jury, 33,  34 
depending  on  locality,  28, 

29,  30 
depending      on      scientific 

knowledge,  31 
specialists,  34,  35,  170 
Society    of    Medical    Jurispru- 
dence, 9 
Specialists,  degree  of  care,  skill 
and  learning  required  of, 
34,  35,  170 
Spencer,  Herbert,  128 
St.     Bartholomew's     Hospital, 

166 
Statutes,  of  Frauds,  182,  183 
relating  to  abortion»113,  114 
relating  to  anatomy,  71 
relating  to  compensation,  93 
relating  to  confidential  com- 
munications, 97  et  seq. 
relating  to  expert  testimony, 

93,  163,  164 
relating  to  medical  practice, 
125  et  seq. 
Stephen,  Mr.  Justice,  115 
Stevenson,   Robert  Louis,   71 
Suggestive  therapeutics,  138 


Taft,  Ex-President,  38 
Taylor,  Dr.,  8,  21 
Testamentary     disposition     of 

body,  71 
Testimony,     confidential     com- 
munications, 96  et  seq. 
expert,  1,  2,  3,  5,  6,  7,  13,  76, 
86,  147  et  seq. 
compensation  for,   94,   95, 
163,  164 
non-expert,   1,  149,   150,  151 
of  negligence,  73,  74 
weight  of,  in  civil  eases,  74, 
75 
Thayer,  Judge,  37 


General  Index 


205 


Therapeutics,  suggestive,  138 
Thompson,  Judge,  90 
Toxicologist,  6 
Twelve  Tables,  188 
Tyndall,  Chief  Justice,  154 


Vaccination,  43,  44 
Visits.     See  Attendance 


White,  Dr.  W.  A.,  156 

Wigmore  on  Evidence,  160,  161, 
187 

Wilcox,  Dr.  Reynold  Webb,  9 

Will,  attestation  of,  by  physi- 
cian,  186,  187 
disposition  of  body  by,  71 

Willcock,  J.  W.,  79,  142 


Witness,,  confidential  communi- 
cations, 96  et  seq. 

examination  of,  2,  3,  4,  147 
et  seq. 

expert,  1,  12,  13,  93,  94,  95, 
147  et  seq. 

interested,  11 

lying,  10 

non-expert,  1 

oath  of,  4,  5 

use  of  notes,  refreshing  mem- 
ory, 16,  17,  155 

See  Cross-examination,  Evi- 
dence, Testimony 

X-rays,  11,  54,  55,  169,  170,  171, 
172,  173 

Yale  Law  Journal,  21 


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